Petition — COE v. TENNESSEE (No. 83-5705)

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WOV 4 1963

IN THE SUPREME COURT FOR THE UNITED STATES

October Term, 13963

ROBERT GLENN COE,

Petitioner

a | «88-5705

STATE OF TENNESSEE,

Respondent

PETITION FOR WRIT OF CERTIORARI

Larry D. woods

william J. Merett, Jr.

WOODS, BRYAN, WOODS & WATSON

A Professions) Law Association

121 Seventeenth Avenue Sout’

Nashville, Tennessee 37203

(615) 259-4366

Attorneys for Petitioner

RECEIVED

Orring ve tne WeRR

SUPREME Corot 4S

TABLE OF CONTENTS

TABLE OF AUTHORITIES.

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STATEMENT OF THE CASE

PINUS WE VE FRG acccucccecctaguevatietatexcanacsuusspheeeleauen

PETITIONER WAS DENIED DUE PROCESS BY THE

SYSTEMATIC EXCLUS OF WOMEN FROM THE

SOU. SON FiO gc os vkcrhassenyhancdeskdé they enemas

I THE TENNESSEE DEATH PENALTY ACT [5

UNCONSTITUTIONAL, AS APPLIED IN THIS CASE,

DUE TO THE DISPROPORTIONATE SENTENCE GIVEN

PETITIONER AND FOR ALLOWING THE FREAKTSH

PUES Be Gio tk cb. cncd var beninnbees sdandeduun subien

, THE PETITIONER WAS DENIED DUE PROCESS By

THE TRIAL COURT'S CHARGE TO THE JURY ON

PREMEDITATED MURDER AFTER THE TRIAL COURT

HAD T° ORMED COUNSEL BEFORE JURY VOIR DIRE

THAT PREMEDITATED MURDER WOULD NOT BE

GUN so cvnativdscctteresiuseetipabtceeghsustsenatelebuets

PETITIONE® WAS DENIED AN IMPARTIAL JURY

AS A RESULT OF THE PROSECUTION'S VOIR

er, GR UE SOUR Ge Bet 0d covcccscasécstucdnbensckn

¥. PETITIONER wAS DENIED AN IMPARTIAL JURY

BY THE FAILURE OF THE TRIAL COURT TO

ALLOW INDIVIDUAL AND SEQUESTERED VOIR DIRE................

VI. PETITIONER WAS SUBJECTED TO DOUBLE JEOPARDY

BY HIS CONVICTION OF BOTH FELONY AND THE

PEPER ENS GP EMic cnc tc cub bce ccUesdwedsescocestentseeven

VII. PETITIONER WAS DENIED A FAIR TRIAL BY THE

PLAYING TO THE JURY OF PETITIONER'S

CONFESSION AS PART OF THE PROSECUTION'S

TABLE OF AUTHORITIES

Cases

Alexander vs. Lo

wisiana, 405 U.S. 625, 92 S. Ct

SS ee 8 gO) > ) leer 17

Blockburger vs. United States, 246 U.S. 299 (1932)....--e eee nuns 26

Conley ws. State, 520 S.W.2¢ 358 (Tenn. Crim

ie. oe. Sea E eset e ews euesoccacces cosecces 21

Davis vs. francis, C82-162N (N.0. Georgia 1963).........eceeeeees cle

Ouren vs. Missouri. 439 U.S. 357, 99 S. Ct. 664,

Ce REGIS... co ceecbscbesenccesesceses ror ee 1.2,16

Fay vs. New Yor#, 332 S$. 26). 6§ Ct 613,

’ ir a e* a*

&.-&C BG EUs cc cece ee ee SPOS Stet Es eres esesereserseseneeeee <<

Furman vs. Georgia, 4 23 2 2,19

Gibson ws. Zant, ? F.26 154 tr r ; ?

Godfrey vs r fs S424 398 5 >

sei 2 2t Pa "7 «& .

Greac vs. Georgia, 4<t i ee te cde ve ee aes eee 2,12

Hance ws. Zant, NO. 62-8342 (1ith Cir., January 24, 1963)......... 29,30

Harris vs. Oklahoma, 433 6&2, t. 2912,

= “TT? . a % . as

275 &-tG.€0 ad 7 e+e o+ene eee eeoeseveseresese £0 .2/ dE

Tllinoits vs vita e 847 & ‘ .

tn Me: Gault, 367 U.S. 1 (1966)......... cece erence ce eceeeceveee: 21

In Me: Oliver, 133 U.S. 257 (3967)...... cece cece ene eerecesccenes 2)

McCorquodale vs. Baikcom, 11th Cir., May 31, 1963......5---eeeees 24,25

nO O0 BOP (1989)....0- oc cscccccccccccscccccces 26 28

Pulley ws. Harris, NO. 82-295... ..- cc cece cree cree ee eee arereneees 2,18,19

Rose vs. Mitchell, 443 U.S. 545, 99 S. Ct. 2993

te ee Us ned ghebéacecddserecosnvosesees 17

State vs. Coe, 655 S.W.26 903 (Tenn. 1983)... .. cee eee eeenenees 1,7,17,18,29

State vs. Jefferson, 529 S.W.2¢ 674 (Tenn. 1975).....-- es eeeeeees 24

State vs. Nelson, 603 S.W.2¢ 156 (Tenn. Crim.

DP. ee a corse peceecconseansssbes 7,15,16,17

State vs. Rickman, 615 S.W.2d 142 (Tenn. 198))......... ccvocseses 18

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.C.A. SeCtION 39

T.C.A. Section ¢»

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.C.A. Section 39

T.C.A. Section 4

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IN THE SUPREME COURT FOR THE UNITED STATES

f ~ > bs oo?

October Term, 1983

. - on

ROBERT GLENN COE,

Petitioner

vs No. 83-

al < r — 7 a

STATE OF TENNESSEE,

Rese rder?

aerrr » ef nee pear tana

, ~ _* a Vv? S44. VAR,

TO THE SUPREME COURT OF STATE OF TENNESSEE

Petitioner, Robert Gilenr Coe prays that @ writ of certiorari issue to

review the judgment of the Supreme urt of Tervessee in affirming his sentence

~@« deat ‘ murde

The opinion uf the Suprers urt of tne State of Tennessee affirming the

daath penalty is officially reportec at 655 S.W.2¢ 903 (Tenn. 1983) anc is attached

as Exh t A

ne judgment of the Supreme Court of the State of Tennessee was entered

on the 27th day of June, 1963. A timely petition for rehearing was filed and

said petition for renearing was denied on the 6th day of September, 1963. The

jurisdiction of this Court is invoked under 28 U.S.C. 53257(3).

QUESTIONS PRESENTED

In Duren vs. Missouri, 439 U.S. 357, 99 S. Ct. 664, 58 L.Ed.2d 579 (1979)

this court set forth the standards required to establish a prima facia vio-

lation of the fair cross section requirement for jury composition. The court

ruled that only a jury composed of a fair cross section of the community

constituted the impartial jury required by the Sixth Amendment to the Con-

stitution of the United States.

In Gregg vs. Georcia, 428 U.S. 153 (1976) and Godfrey vs. Georgia, 64

L.£¢.2¢ 398 (1980) this Court stated that the constitutional concerns expressed

in Furman vs. Georgia, 408 U.S. 238 (1972) which resulted in the invalidation

of the death penalty, could de met only by a carefully drafted statute that

insures that the sentencing authority's discretion is suitably directed and

limited so as to minim‘ce the risk of arbitrary and capricious imposition of

the death sentence The court required constitutional safeguards to insure

against 2 jury's arbitrary and capricious infliction of the death sentence in

violation of tne Eignth Amendment. This court has recently grantec certiorari

in Polley vs. Harris, No. 82-295 to determine what standards of proportional ity

review are requirec by Gregg and Godfrey.

This case raises the questions of whether a Tennessee jury selectior

Statute and the Tennessee death penalty statute, though both capable of consti-

tutional construction, mhave beer interpreted and applied in such a way that the

safeguarcs against an impartial jury and against random and arbitrary imposition

of the death penalty are ineffective to meet the constitutional objections raised

in Durer vs. Missouri and Furman vs. Georgia anc its progeny. Specifically this

case presents tne following questions:

1. Whetner the Petitioner was denied due process by the systematic exclu-

sion of women from the grand jury pool and nas standing to challenge the

composition of the grind jury which indicted him.

2. Whether th. Tennessee death penalty statute is unconstitutional 2s

applied to the Petitioner due to the disproportionate sentence given the

Petitioner and whether the Tennessee Supreme Court conducted the proper pro-

portionality review of Petitioner's death sentence.

3. Whether the Petitioner was denied due process by the trial court's

charge to the jury on premeditated murder after the trial court has informed

counsel before a jury voir dire that premeditated murder would not be charged.

&. Whether the Petitioner was subjected to double jeoperdy by his con-

viction of both felony murder and the uncerlyine offense, which obviated the

necessity for the proving of any additions! elements for a conviction of first

Gegree murder.

5. Whether the Petitioner was denied ar impartial jury by the failure of

the trial court to allow individual anc sequestered voir dire despite the fact

that the two previous change of venues hac to be granted because an impartial

jury could mot be paneled and that over half the jury poo. from which the trial

jury was selected were excused for cause.

6. wWhetner the Petitioner was ceriec am impartial jury as a result of the

prosecution's voir dire on the issue of insanity.

whether the Petitioner was ceniec a fair trial by the playing to the

jury of a tape of Petitioner's confession as a part of the prosecution's closing

erocumert

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Pee, ‘ NVOLVEL

This cause inwolwes the Fiftn, Sixth, Eighth and Fourteenth Amendrents

2. This cause also involves the following statutes of the State of

- aap ea ec ip eee

Tennessee as set forth in Exhibit T.C.A. $22-2-201, 7.C.A. $22-2-302, 7.C.A.

§39-2-202(a), 7.C.A. $39-2-203/1)(5)(€)(7), T.C.A. $39-2-205, T.C.A. §40-18-111,

and Tennessee Rules of Criminal Procedure, No. 6(a), and Tennessee Constitution,

Article 1, Section 10.

REASONS FOR GRANTING THE WRIT

This Court nas recognized the unique and awesome sature of the State's

power to determine whether a human life should be taken or spared. Because of

the absolute anc irreversible impact of this determination, this Court has

mandated that the death penalty may be consitutionally imposec only under

procedures that insure that the trial afforded to the Petitioner was fair and

conducted before an impartia! jury anc that the State's power to decree death

is not wantonly and capriciously exercised.

Petitioner was ceniec the protection of both procedural safeguercs de-

clared to be constitutionally required. he jury which convicted the Petitioner

did not represent a fair cross section of the community, it 18 prejudiced Dy

inflasmatory evidence anc its sentence of death was grossly cisproportionate

to the sentences imposed in sietlar crimes and to similar defendants. Peti-

tioner’s richts uncer the Fifth, Siath, Eighth and Fourteenth Amendments were

TATEMENT OF THE CASE

On Oecembder . 1979, Petitioner Robert Glenn Coe was indicted by the

Weakley Courty cranc jury for the offenses of first degree murder, aggravated

rape and tidnaorirs of an etomt vear old chilc. Two motions for chance of

venue were grantec anc the tria) dege ebruary » = mn Shelby County,

Tennessee Or Fedruary 26 anc 27, 196), @ Snelty County Criminal Court jury

found Petitioner Robert Glenn Coe gui’ty of eurder in the first decree and of

agoravatec rape anc ticnapping on February 28, 196), the Shelby County

Criminal Court tury founc certair statutory aggravating circumstances numbered

in 7.C.A,. $39-2-203(1), (5), (6) and (7) to wit: tne wictim was under twelve

years of ace anc the Defendant was over eighteen yeers of age, that the surder

was especially heinous, atrocious and cruel and involved tortue; it wes com-

mittes to avoid prosecution; and it was committed while the Defendant was engaged

in committing and fleeing after committing aggravated rape and agoravated kid-

napping. No mitigating circumstances sufficiently material to outweigh the

statutory eggravating circumstances were found and the Petitioner's penalty

for the first degree murder conviction was set at death. His penalty on the

other two offenses was set at life imprisonment.

A motion for new trial was timely filed and was subsequently overruled

on April 10, 196). New counsel was appointed to appeal the case upon direct

Court on Apri: 27, 1961.

appes! to the Tenness

-4.

Or May 11, 1961, the trial judce filed with the Supreme Court of Tennessee

Ss statement setting forth sentencing information on the Petition including

accravating and mitigating factors. On June 27, 1963, the Tennessee Supreme

Court affirmed Petitioner's conviction on the three offenses and the sentences

A timely petition for rehearing was filed and subsequently on September 6,

Present counse! was substituted for appellate counsel on September 15, 1963

anc upon Petitioner motion, the sentence of death was stayed pending applica-

tion for petition of certiorari to the United States Supreme Court effective

Septemter 15, 19 TP etition for certiorari is timely filed

oft

STATEMENT OF THE FACTS

On December 11, 1979, Petitioner Robert Glenn Coe was indicted by the

weakley County grand jury for the offenses of first degree murder, agcravated

rape and kidnapping in the September, 1979 death of an eight year old child.

Two motions for change of venue were granted anc the trial began on rebruary 10,

1981 in Shelby County, Tennessee.

Prior to trial, Petitioner through counse) challenged. the composition of

the grand jury which indicted him. The Petitioner questioned the constitional ity

of the statutory obligation of the jury commissioners under 7.C.A. $22-2-302, to

select "a list of names of upright and intelligent persons known for their

integrity. fair character and sound judgment who are otherwise lecally qualified

*o serve as jurors Petitioner allegec that in practice, women, Dblacks and

younger qualifiec persons were underrepresentec.

Extensive proof was presented concerning the selection procedures for the

Weakley County grand jury. Introduced into evidence was a complete jist of

names for the jury pools for the orand jury which indicted Petitioner Coe and

for the preceding three grand jurie: The. population of weaklew County ac-

s ?

cording to the 1970 census was 26,827 of which 14,177 were male anc 14,€

were female.

In @ procedure similar to that accept by the Tennessee Court of Criminal

7 ‘

Appeals in the case of State vs. Nelson, 603 S.wW.26 156 (Tenn. Crim. App. 1960)

to break down the number of maies and females on the jury pools the jury pools

were broken Gown into statistical categories. This information was compiled

into an exhibit the accuracy of which was accepted by the prosecution. (Vol.

2, p. 211, Ex. 6) This exnibit snowed that the percentage of tie Weakley

County population eligible for inclugion in the grand jury pool which indicted

Petitioner Coe was comprised of 70.414 mate and 29.59% female. The preceding

grand jury poo! contained a percentage of 58% male and 42% female, the tnird

most recent crand jury poo! contained a percentage of 62.23% male and 37.77%

female. The fourth most recent grand jury pool contained percertages of 77.65%

male and 22.35% female.

The jury commissioners were called to testify as to the method they used

in selecting members of the grand jury poo! Each testified that they picked

the people that they knew anc tnat they made some attempt to insure that

sufficient number of blacks, younger persons and women were included * the

granc jury poo).

Statistical evidence was introduced to the effect that the probability of

having just 200 women on the grand jury poo! out of 676 randomly selected

individuals assuming the population of men and women were approximately 50/50

is less than one out of a million. Schwartz Affidavit, p. 3

The trial court deried Petitioner's challence to the composition of the

granc jury. Upon appeal, the Tennessee Supreme Court ruled that Petitioner,

a white male, hac no standing to challenge the composition of the crand jury

Claiming underrepresentation of ferales. State vs. Coe, 655 S.w.2d at 910

Because of the extersive pretria) publicity surrounding this case, two

Changes of venue were soucht anc crartec before this matter was brought to

trial. Altnough the offense occurred in Weakley County, an impartial jury

Could not be selected and a change of jury was granted to Obion County. There

also, because of the extensive erea-wice publicity, an impartial jury could

not be selectec Finally, the case was transferred to Shelby County (Memphis

where it was tried becinring February 10, 196)

co tr

rrior tc

conducting the voir cire of the jury pool, the trial judge in-

quired as to whether the one count murder indictment was both a common law

or premeditated murder anc a felony murder indictment (Vol. 2, p. 6). The

prosecutor responded

Felony murder. I believe we reachec that decision at

the last meeting we had with Judge Faquin [the trial

judge in Obion County) and that issue was raised and

we pursued it to the point of felony murder indictment,

however, murder in the perpetration of a felony, being

aggravated kidnapping or aggravated rape..

(Vol. 2, p. 6)

Tne trial judce and the prosecutor then mentioned that under the statute

the indictment could be read to be both common law (premeditated) murder and

felory murder Defense counsel ther reiterated the request to know exactly

upon which ground the state would proceed. me district attorney then responded,

"Still, I state to tne Court that felony murder would be the proceedings by

the State ’ ro 7-8) The following then took place

me od : d aa ot :

. * rignht, ‘vt's have it clearly under-

- 7 a. 477 . Ar

stc c. re LoOurt hel proceed that there

1s @ ONE Count Indictment charging this

defendant, Robert Glenn Coe, with the

charge of the felony murder, of murder in

the perpetration or attempt to perpetrate

agcravated rape.

A. # That is correct

= * not charge the common law count

jezling with premeditation, et On} y

the ‘ unt, fe murder kay?

oo "rae rrecre

-~ . ever ybDoc urcerstaencdc - rignt,

uc ? ‘ y trae

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Neitmher the defense nor the prosecution attempted to qualify the jury on

o> ae arameaditatad mira a o6 oe da dat atfanc 4 od

"Ee eiere c as ec Jrce 4a . esse <ivucedc oO ense oO second

Gecree mur 25@ was triec before tne jury as a felony murder case

-* *, ote ‘ ‘ *~s . . ‘ *« “ . ‘ erta . pn tocraons } the

deceesec taker at the er é ver objection, the trial judge allowed the

photocraphs for the ostensible purpose of showing the premeditation. Vol. 22,

- 1s. ,

c €

At he conclusion of the Stete's proof the trial judge stated that he

would not be bound by any state election and that he would charge the element

of premeditation in first degree murder. Vol. 22, pp. 17-18 and Vol. 30,

During voir dire, the prosecutor explained to the jury poo) that the

Defendant was charged with murder in “he perpetration c* rape, and with rape

anc kidnapping of a chiic under thirteer (Vol. 2, p. $2) After the definition

of murder anc insen'ty, prosecution explainec that the proof would show that

the ceceasec was ory e'cnt years of ege and addressed the prospective jurors

by asking if they theught one harming ar eight year old child would have to be

insa e to do a thing like that. Vol. 2, 9. %

Prospective juror Delk stated that such @ person may not be insane but

something 1s probably wrong with «her. Vol. 2, p. 99) The prosecutor then

asked some more specific questions of prospective juror Deli by stating; if,

knowing the charges anc proof outlined would she be included to think this

Gefendant was insane’ Her response wes “yes sir.” (Wol. 2, p.

stated she hac @ preconceived notion that people who would harm a small eight

year old child are insane or have some mental problems. Although this opinior

Could probably be changed by the proof and she dic say that she would judge the

evidence of sanity and the Defendart's evidence of insanity fairly anc im-

partially and that her opinion was not concrete but would require proof to change

her mind, the juror was excused over cefense objection for cause vol. 2,

pr 10-113 Pr ective juror Bynum was excused for cause over deferse obdijec-

tion when he responcec the affirmative he hac an opinion that a persor

committing ar act of “seriousne egainst an eicht year old girl must be insane

Or “nave @ severe mental probler ' e craz ic 2, pp. 283-254

Otner jurors were questioned concerning their commitment as to whether

or not they wou t that, knowing the facts, that “something was wrong

with him” or that ne hac to be “craz ’ ec, vp. H2, Wo » p. 502, Vo

17, p.

The Defencart exercised al) of his fifteen preemptory chal lenses. ol.

17, p. 912

At trial Petitioner asserted the defense of insanity and the mitigating

factor of insanity. In support of Petitioner's claim of insanity, Collective

Exhibit 67 was used to show the history of Petitioner's childnood and early

psychological evaluations.

Petitioner wes raised with two sisters. His mother and father had @ poor

relationsnir His fatner repeetediy hac intercourse with his older sister.

He wes often beater by his father unmercifully for nothing more than *he

father's satisfaction. He went to scwo! through the seventh grade after

which he dropped out. He did very poorly in school, fai’ing at least once and

perhaps more. (Ex. 67)

Petitioner was first examined by a psychologist in Florida after arrest

for rape and wes founc tc be lsboring under such a defect @ reason that he was

unable to know or appreciate the wrongfulness of his act. Petitioner snowed

a marked inability to think clearly anc concentrate. He manifested marked

anger and hostility which wes primarily internalized. He manifested borderline

intelligence. He manifested aspects of schizoid personality but was not

blatantly psychotic. He did have the potential to become blatantly psychotic.

(Or. Wald 2°20/75, Ist Report; Ex. 67; Vol. 23, pp. 1849-1853)

Another examination in Florida by psychologist Or. J. R. Lombrillo found

Petitioner was suffering from a psychiatric iliness and was not able to under-

ttand completely the quality of the act with which he was chargec or whether

he was doing wrong. (Lombilio 2/26/75 Report; 2nd Report; Ex. 67, Vol. 23,

pp. 1654-1956

Petitioner was committed to the Florida State Hospital on February 25,

1977. Im its report (Ex. 67), dated June 5, 1975 it noted that Fetitioner

eppearec to enjo shocking the group in group therapy. Mowever, he cic not appear

J 3 .

psychotic and appeared to be functioning within the dul! normal rance of in-

telligence. He best fit the category of personality cisorder of an explosive

ard antisocial type with general underlying hostility and aggressiveness toward

others that could make nim potentially dangerous. He received medication twice

Gvily.

The staff at the Florida State Hospital concluded that he was competent to

stand trial) (for the Florida rape charge) but noted long drug abuse and stated

that if he was released he should be followed up in a local mental health

center for drug abuse. Although treated with medication in the hospital, it

was not considered necessary for him to continue the medication. (Ex. 67,

3rd Report of Florida State Hospital) However, both treating psychiatrists,

Dr. Wald and Dr. Lombrillo, strongly opposed his release.

Petitioner was

or September 23

conc

cexual impulses

re further

recorpmencec tha

treatmert as a

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mrenic reaction in remission

e and (3) sexual deviation. It

a) disorder c ack of impulse contro! and

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sé épe aga anc aca uniess ne couid

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onstruct'.e a@iternatives to dea!’ with his

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9 year old was st dangerous and

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to the Sout? orida State Hospital! for

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sex offender Sth Report, Ex. 6

’ . . ~<« ? a ha .

report, in Apr : 976, states that

nc lude ffense of assault and was re-

r 23, 1375 as a sexua! offender It noted

»* ‘ rt inged nospitaliz . - re

ued hospit zation and

, - ‘ ‘ - - cae

: rer n, chronic schizopmrenia

ec é At times Petitioner was sincer

ecome v ent He still could not contro

r t zat was recommended 6th Repor

P t2 reiatec that ne na@éc exposec him-

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that the sta nac concluded in its

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ould rtinue inpatient treatment. tr

mar

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release.

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again concluded that Petitioner

clasions and recommended alternative

&, that he was impressed with the

4vior in the hospital ever

though

Me agreed that Petitioner could

of society and suggested Petitioner's

two years.

(9th Report; Ex. 67

Or. Lombillo statec in a September 30, 1976 letter that Petitioner, ther

20 years old, had a thought process which was still characterizec by blocking,

which was a defense to Petitioner's emerging and uncontrollable aggressive im-

pulses anc al] tests indicated poor tc non-existence contro! over these

feeling Petitioner should be tr a unit where severe psychopathclocy is

treated. Petitioner has a latent type schizoprenia, and antisocial personality

disorder associatec with sexua’ ceviatior without this extensive treatment,

Petitioner must b« esidered a high risk for future violent enc antisocia!

acts toward womer tn Report, Ex. 67

Tne Florida State + tal notes that at the staff's March , 1977 con-

ference Petitioner wa t believed cancerous due to fh poor impulse con-

trol, ex? tice te es, r heterosexual relationships, anc poor social

and Commu at ' th Report, Ex. €

The fina! P : re t te r pages 4 and that at a staff meeting

e Auoust 26. + yded that in spite of Petitioner st ex-

nioi? 4 ‘ ¢ *¢ e ee evera a , Me was worovedc

€* : ty w t esert anc it was doubtf that he would

eve J : . far eas & to ne and there was a procram

aya : ? ex ‘ ’ . ere by e at Memoh } . Terre ee

Per Re “e ‘

Or. Wa fir etter was cate ctober €, 1977 Ex. 67 It concluded

that Petitioner would not represent a significant menace to society if he

continued to seek treatment, refrains from use of alcohol and drugs, obtains

meaningful employment and has the support of family members. It also recom-

mended that he be allowed to return to Memphis for outpatient treatment by

The fina etter from Dr. Lombi’lo dated October 20, 1977 recommended the

release of the then /) year old Petitioner hopefully under supervision of the

14th Report, Ex. 67} However, Petitioner

> > >

court for outpatient treatment.

never saw Dr. Able Vol. 246, p. 1971; 15th Report, Ex. 67)

o}2-

Edith Poor, cousin of Petitioner, testified that since Petitioner left

Florida end returned to Tennessee he had beer a heavy user of drugs including

uppers, downers, marijuana, cocaine and LSD or acid. Vol. 24, pp. 996-9)

Prior to trial on the Tennessee charces of aggravated rape, kid

;

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ha)

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and murder, Petitioner was examinec by a private psychiatrist, Or. David G.

Cook, who testified at trial. Vol. 22, pp. 1783-1766) He described Petitioner

&@s quite aggitated anc excitable with thought processes tangential at best. He

ot carry on a decent conversation for more than a minute and usually

mot that long. He was hallucinatory. His history was quite chancab’e. His child-

hood was very traumatic, deforming his development. he word catastrophic

as descridtng Setitioner’s childmood would be @ gross uncerstatement. (Id.,

1786-7 In Or. Cook opinion Petitioner was schizopmrenic when examined ir

the latter part of May anc early June, 198C Ig., 1786) Or. Cook was of the

Opinion tnat Coe was insane at the time of the act under the Graham decisior

if he had been taking LSO anc Hasnmish at that time id., 1791

Or. Cook motec that Petitioner nas been arrested a multitude of times for

exhibitionism. He was of the opinion that Petitioner's paranoid schizophrenic

condition was druc mobilized id., 1799 however, dbecause of his upbringing

he believed that he coulc not have come out of the particular environment on

which he was raisec without being psycnotic even if he nac never taker cruscs.

— ‘>

aS. eg t/ FU

On February 26 anc 27, 1981, a Shelby County Criminal Court jury found

Petitioner guilty of murcer in the first degree and of aggravated rape and

kidnapping. On February 28, 1981, the Shelby County Criminal Court jury found

Certain statutory aggravating circumstances numbered in 7.C.A. §39-2-203(1)(5),

(6) anc (7) to wit: the victim was under twelve years of age and the Defendant

was over eighteen years of age, that the murder was especially heinous,

atrocious and crue! anc involved torture; it was committed to avoid prosecution,

and it was committed while the Defendant was engaged in committing and fleeing

after committing aggravated rape and aggravated kidnapping. No mitigating

circumstances sufficiently material to outweigh the statutory aggravating cir-

cumstances were found and the Fetitioner's penalty for the first degree murder

s1%

‘5

’

“

“w

Onvictiar ,

convictic wes set at death, his penaity on th

V4 re 4

ife imprisonment.

he mnt dae fre nr * . .

tio C Cw trial was timely filed and was subsequere

° | 2s ee ofuver.iy oOverruied

or Aaerd I<¢ ‘

0 ie . 3= © coun: 5 DO 4 ]

. w COUNSE@: was apr ntec to appeal the 8sée upor direce

2 upC

aopea? oO the rre¢ce c

. to t ermessee Supreme Court on A; 7, 19

s. Ma ,7 7 > ’

U ’ > ne tria judse filed

; » t tria ucse Qc with the Supreme C t of Tf

; ; th ¢ Sus e Cour enness

. © see

. -“* need .

a Stateme : sett NC forth sentencine (ntnawwae s . - the Perit ’

. - . -— . - . =* 1 ner Ine Cine

. ~ ww

eggravating and mitigating factor r 363 eo

t a , 4 re a> + ? . ¢

J < . >is . Lne erres ee or -

Court afé rmec Petit inner < . -* ’ ar > as +¢

t C vic . tre ree offenses and the <«

¢ 4 rterc .

se e e

jinnnead ¢ ‘

pose r Jc > the sentence of deat

4 ‘ y nee ° ’ fm rerear r we ’ ary 4

| & ~| wosequert ,y ' eptember ¢

, » De ‘ we yverrul ec

Deoacare ’

e t J ‘ Peel 4c ’ tute ? ’ » ‘ a*s r , > ¢

5 > 4 . cpt rT =

ert >

G and ut ° Pee > rer —-* **, -* r ‘

, er u¢ seat wa tavec pendir

aoc 1cati , I v pe? > ‘ ‘ , " . *-. » . “ . .

‘ es A*@ UDrere r?

; -Ourt

- ‘

effective Septenber ;

1. PETITIONER WAS DENIED DUE PROCESS BY THE SYSTEMATIC

EXCLUSION OF WOMEN FROM THE GRAND JURY POOL

At trial Petitioner challenged the composition of the grand jury whic’

indicted him. He presented evidence that the grand jury poo! selected in

August of 1979 (which indicted nim) was composed of 29.6% womer and over 70.4

men. The State dic not challenge the accuracy of these figures. ¥ol. 2,

p. 221 The population of Weakley County eligible for jury service according

to the 1970 census figures showed that of the persons of age eligible for jury

service 59.8% were waren and 49.2% were men. Vol. 2, pp. 188-206; Ex. 6

Thus, there was an absolute disparity of 21.2%. If the pool had reflected a

population eligible for service on the crand jury, there would have been aimost

twice as many womer in the poo! as there were Three women and ten men served

on the crand iury thet indicted the Petitioner Testimony was presented

throuch the affidavit of David mwartz, a statistician that probability of

tr Gisparity wou J . tha e in a mitlion times by chance, i'd

Say less thar é n because tr probability is so low that we

litera run off the end of the ¢ é mn other words, the occurence of

the samole U ne by chance that its proba ity does not even occur

on tne tadie, t @2 ff tne ¢ chwartz Affida tee £ 5

Pr ee +‘ - J , > ver tre a yeers prececing tne poo

from which the cranc jury which indicted the Petitioner was chosen) had as

few as 22.35. womer anc averecec an underrepresentation of women of adout

The three preceding crand jury pools had female percentages of 42%, 37.77%

and 22.35%. hese statistics show that there has not been a fair cross section

during those eight years and possibly even more. In fact, the testimony of

Jury Commissioner Featherstone referred to a time when he picked persons for

the jury pool “back before women had to serve... (Vol. 2, p. 252)

he jury selection statute in Tennessee has been held not to be facially

discriminatory. See State vs. Nelson, 603 S.W.2¢ 156 (Tenn. Crim. App. 1980).

The procedure described in 7.C.A §22-2-20) requires that a board of three jury

commissioners in each county are to meet at fixed times in order to:

select, from the tax records and the permanent recistra-

tion records of the county, or other available and

reliable sources, a list of names of upright and in-

telligent persons known for their integrity, fair

character and sound judgment who are otherwise legally

qualified to serve as jurors from each district in the

county and in proportion to the population of such

The testimony of the jury commissioners at trial disclosed that they chose

jurors from voters registration lists and generally selected people that they

knew or others knew that met the statutory criteria, divided their selection

proportionately within the alphabet testifying they specifically soucnt females,

blacks, and yours voters in an amour. proportionate to county popu

names on the jury list are then placed in a box from which names are summoned

for jury service. 7.C.A. $22-2-302¢ Jury selection for granc jury is made

from the same . "enr Rules Cr Pr 61a

Petitioner contends that he has met the three-part test set forth by this

court in Durer v v; yr i, 43 357, 9 Ce. 664, S82 L.Ed.2d 579 3793

mn order to establish a prima facia violation of the fair

ross-sect requiremert, tne defendant must show (1!

that the croup alleged to be excluded is a “distinctive

croup in the community, (2) tnat the representative of

this group in vwertres from which juries are sele«ted is

not fair and reasonable in relation to tne number of

such persons in the commcity, anc (3) this under-

representation is due to the systematic exclusion of the

Group for jury selection p

The Tennessee Court of Criminal Appeals in State vs. Nelson, supra, recognized

that jury commissioners in fcliowing the requirements of the Tennessee statute

absent any finding of malicious intent to omit names, did systematically

exclude a distinct class in the community which constituted a significant

portion of the county population. In that case, members of the “Farm,” a

loca! commune, were excluded from the jury pool for the simple reason that jury

commissioners did not know anyone on the commune. The court found, however,

that the Farm dic constitute a distinctive group im the community and that the

representation of that group (none) was not fair anc reasonable in relation

to the number of such persons in the community. The third Ouren, supra,

old

requirement that the group's uncerrepresentation be due to their systematic

exclusion was found by the Tennessee Court of Criminal Appeals despite tne

affirmations of good faith in making the individual selections by the grand

jury commissioners. The court stated that these affirmations of good faith

were insufficient to dispe! the prima facia case of systematic exclusion.

The court ther cited Alexander ws. Louisiana, 405 U.S. 625, 92 S. Ct. 1221, 3)

L.£¢.2¢ 536 (1272) ance other cases.

Petitioner's challenge to the grand jury composition in mis case was based

upon the Alexander vs. Louisiana rationale and fits precisely into the factual

situation represented in State vs. Nelson, supra. Petitioner, a white male,

souznt to challenge the composition of the orand jury pool for its exclusion

of females. The State contenced and the "ennessee Supreme Court agreec (State

that the Defendant lacked starding to challenge the granc jury

“

”

“

‘

competition on the basis thet women were systematically exclucec. The decision

by the Tennessee Supreme Court is in direct contraciction with the recent

leventh Circuit ruling in Unites States vs. Cross, No. 81-7738 (June 30, 1963)

which held that a white male cic nave standing to challenge the uncerrepresentation

nf women and blacks on a crand jury. (See also, Gidson vs. Zant, 705 F.2¢ 1543

[vith Cir. 1983). he racial composition of the Weakley County jury pool,

though mot ratsec before tne Tennessee Supreme Court, is subject to severe

—

“

Questioning. See, Rose vs. Mitcnell, 443 U.S. 545, 99 S. Ct. 299

Petitioner contends that this court should grant certiorari to consicer the

conflict between the Federal Court of Appeals for the Eleventh Circuit and the

Tennessee Supreme Court on this important issue of due process and the right

to a fair trial provided for by the Fifth and Sixth Amendments of the United

States Constitution.

-)?-

I]. THE TENNESSEE DEATH PENALTY ACT IS UNCONSTITU-

TIONAL, AS APPLIED IN THIS CASE, DUE TO THE

DISPROPORTIONATE SENTENCE GIVEN PETITIONE®

AND FOR ALLOWING THE FREAKISH IMPOSITION OF

DEAT

This Court has recently grartec certiorari in Pulley ws. Harris, Nc

by state courts 1s required to meet the Grego standarc. Grego vs. Georg)

? DD | ——_—_——_s4 =

oJ 3/G, prowices that tne ceath sentence must de examinec to deter-

mine if it is excessive or disportionate to the penalty imposed in similar

review of a death sentence by

“

be)

‘

mw)

‘

;

’

‘

’

‘

the Tennessee Supreme Court to determine, among others, if “tne sentence of

ceatr exce ve or disportionate to the penalty imposed in similar cases,

considering both the nature of the crime and the cefendart T A. §35-2-205ic

Empmasis adcec) Tennessee Susreme Court in affirming Petitioner's sentence for

Ceath doe t nmuct the pr t 2' ity review mancetedc by both oreco and the

ah "S|

Tennessee statute ee State » € at 22

There was ample proof presertec at trial ¢ how that the Petitioner has

severe merta rcer ae mowec that tre Petitioner spent twc

anc re-r"a é ear «4 rec . ~prts - . tut o he of Mar > De 563

ninety trial juége reports hac beer filec in the Tennessee Supreme Coirt Clerk's

Office. Eight of trcie ninety reports indicatec that tne defendants nhac some

sort of personality disorder. Of the eight, only one was sentenced to die.

state vs. Coe, p. 913 (See, State ws. Ronalc Rickman, 615 S.wW.26 142 [Tenn.

1961}). None of those individuals had ever spent time in a mental institution.

All the experts testified that Coe is a sexual deviate. His sadistic

father repeatedly beat Petitioner, obtained delight in making Petitioner watch

his rape of Petitioner's sister and made Petitioner watch him masturbate.

These are not fsolated instances. They happened time and time acain for years

Guring Petitioner's impressionable childhood. (Vol. 24, pp. 1976-1992)

Before Petitioner's eighteenth birthday he was constantly smoking sari-

juana, sniffing paint and using LSD. Vol. 28, pp. 1967-8)

-18-

Wher Petitioner was eighteer years old he was charged with assault to

Commit rape anc murder and was committed to the Ficrida State Merta! spite

for tnis offense Ex. 67, Sth Report

After two anc a half years tne mospital staff reported that it was doubt-

ful the Petitioner, ther twenty-one years old, could ever contro! his sexua

Geviatere . "e we released n the recommendation that Petitioner receive

continuing out-patient treatment. however, after his release Petitioner never

. ~-* . *% Cc 5 <i . -

4 ¢ +- . ce - .

again hac psychiatr treatment ‘ <8, § 3/1, totnh Report, tx. €

a ¢ - . - : ¥ .* ‘ > . y Suir o - >. ‘A .

A proper propor! | -y review Oy the iennessee supreme Lourt wou'c nave

, 4 ~@# ’ er ’ - Dee tein . - .

51s sec that the extent of the personaity disorder in Petitioner's case was

- - os - . , > > a . > - ~

much re overwh : J that in the eight other cases where per

: . | a nA ia ’ 7 o

4 ‘ 4 . aA y - 4 ‘ ‘ .

rné ty 2 er were ee. eG >| ve otne 4'¥ iQue r erressee

wi? rs fa ‘ . . . *. hear : rs ever Spent ary time c nfined t

’ m~orera > . . o* ‘ ere ‘ »* Te 4anr? a *r some vr? ahd pers nale-

ie refer Pye were ve 4, a -onmer * Under such ircumstance -

’ >

the - . ; ory oatr ‘ . ore ane with discri inat? and the

ennessee statute ed t tit er permits the death penaity to be

‘ 226 . .

want y" mg ‘rear - ‘ yrman seorcia, $06 | é3 v7

a *

® ° > . > rane ae @ rar 4pterminre if the

pe j j é ora ‘ eve €

. > * > ? 2 - **?

rel ~* . . Ce. . 4u *, . é erne ee ,orere urt wa F ns tue

. . . if ¢ 6 . »* ‘ ers "rart®te ‘ ert) rar’ is Py) e\ vs Harr

’ -_--s»> - es -_-—

‘

, é-<

**? > 7rrrr - se * “or - a vce uF 7fr +e

aaa HE PE 4 LONER aD DENIED vut PROCESS 8Y me RiP

Oba te Cnet th Cee we fen GOT RTT ATES panic

LUUR S CHARGE v ME VUMYT UN PREMED! ‘al EC MURDEF

frre fur Hts rr Se led te. ‘err aia ory ° ar

AFTER THE TRIAL COURT HAD INFORMED COUNSEL BEFORE

afin aon Behe Guae ancerneenere inath pitaen es haart

JURY VOIR DIRE THA REMEDITATED MURDER WOULD NC

gp Re eel

BE CHARGEL

Prior to conducting the voir dire on the prospective jurors, the tria

= ~ “ * - > ~ * “a4 . ~- —. -

judge inquired as to whether the one count murder indictment was both a common

} . -* “ ’ . is > ‘ a

law premeditated murder indictment and a felony murder indictmert. vc Ze

leer * ' > - +. - a

p. € Attorney Generz: Hayes, the prosecutor, responded

, a ’ » ‘4 - 4 > > a ~4 in

Felony Murder I believe we reachec that cecisior

<* > ~ > a Am c “

in the last meeting that we had with Judge Faquir

,. . 4 ‘ 4 - as “a 4 Sen

anc tha SSue was ra‘sec anc we proceecec fror

>. - ‘ ~ ?

the point of felony murder indictment, murder and

. s ne ~ “a

the perpetration of a fe y, being aggravated kid-

nappine or aacravated rape

‘

’ -*

when the trial judge anc the prosecutor observed that the indictment

could be both common law (premecitatec) murcer and felory murder, defense

counsel requested to know upor exact which grou the State would procee

ne prosecut ’ re =¢ . t . tate t Tne rt treat fe ny Murcer wou'iGc

be the or eecir 4 tr tate . .

Tne ‘ wir 4 + if re é i8

7 o r nt. e° nave ° par under-

tood Tne Court w proceec tnat there

acre count indictment charging this

Sefencant, Robert Glenr Coe, with the

charge of the felony murder, of murder ir

- > . *- *

tne perpetration or attemot to perpetrate

agcrevated rape

- . * r > -*

U.A. HAYES nat is correct

> r~ oF . +1 . > - ~~ } >.

HE COUR 1 will not charce the common law count

A + A +. *- ve } >

dealing with premeditation, etc. OUniy the

> ’ A f 3

one count felony murder. Okay

HE COUR Does everybody understand? Al] right.

So much for that.

Neither party attempted to qualify the jury on the elements of pre-

mecitatec murder or the lesser included offense of second degree murder. The

case was tien tried as a felony murder case unti!) the defense objected to

-20-

introduction of certain photographs of the deceased taken at the scene. The

trial judge ther allowed the photographs for the ostensible purpose of

showing premeditation. (Vol. 22, pp. 16-70) At the conclusion of the State's

proof the trial judse indicated that he was not bound by any state election

to proceed only on the felony murder anc that he might charge common law

murder in the first degree, that it worried him not to “charge on something

that was set forth in the indictment. Clearly, your common law on premedita-

tion is set forth.” (Vol. 22, pp. 17-18) The trial judge subsequently did

charge on premeditated murder. (Vol. 30, pp. 24-88)

It is well settiec in Tennessee that common law and felony murder are

Gistinct and require distinctive treatment. Conley vs. State, 520 S$.W.2d 356

‘-* -

(Tenn. Cr. App. 1974). The reliance by the defense counse! on the State's and

the trial court s elect*on to proceec on felony murder only resulted in defense

Counsel not conducting woir ctre or the issue of premeditation. This dental

of theright to wotr dire constitutes prefudice to the Petitioner in that he was

mot allowed to examine the “ury on this issue for possible bias and in the use

of his preerptory challenges.

Furtner, the sudsequert charge by the court on the issue of premeditation

constitutes the ceria! of due process to Petitioner in that the notice of

the use of premecitation which Petitioner received was not given at a meaningful

time and in « meaningful manner. It was not given sufficiently in advance so

that a reasonable opportunity to prepare on the issue of premeditation including

voir dire on the sudject could be afforded. (See, In Re: Oliver, 133 U.S. 257

(1947) and Im Re: Gault, 387 U.S. 1 [1966)}).

. arr re + omere sc frerer ** ‘woeorres - ‘ cc ?

IV. PETITIONER WAS DENIED AN IMPARTIAL JURY AS A RESUL

arc Sorcerer the ce . “ Ss. fur tte AL

OF THE PROSECUTION VOIR DIRE ON THE ISSUE OF

‘octet?

INSANITY

_ - . —— . - —

. < four? ‘- aitnersc . y - ; 7G c . @ S “¢ D.

&..t6.<¢C Ihe statec thet

. -~« © . ** 4“ @hae «* +. a ~* <*

; . - OU Qe. e ec ine @ s.ate May nor. e rust

. 4Aet*orw . -~« . Pa ~- o~

me cete né nm ¢ whether aman } innocent or

~ > > . ++ . - “a ¢ -*

Suilty a tribunal court “organized to convict

> . ‘ ~~ e ast “- +4 .

Pay vs. New Yoru, 332 5. 261, 67 S. Ct. 1613, §

— - oe )h[6hlUk aw Bh, - —s, cic a. -

; v. anc ~¢ + ? é ,

- 2 < 67u wey V> ~ » «£7 Jive = 4

. - + eA ~) | —_—ee ——

_ , i=

’ ts ;

e+e +. - > * * > . * - ~ ‘

re “ ner contend né , r oire Oe ury Oy tme prosecu r orgenizec

the jury to return a verdict against Petitioner defense of insarity and the

- >. . . or ‘ ,. ‘ . . 7 e ~

Liga 8 j | hi y ates retitioner rignts to

4 *

a : . > j cu . *os che 2? boer ‘rer? > the e *oa- tate

av the ¥ tre ecut » the prosecutor read the defini-

. é urde . . ere ~ . P . the u? ‘ that the oroné?

4 > o> 4 P . oa aA @has chad eh - if @n

wou ‘¢ ‘ ‘ ) a astec tne ¢ ney

> ae . > ~- ‘ - 7

Ous? r . -4 3 4 wou'c Mave tc De nserne t Gc

>» © ’ bs . .* : ; T ‘6 . ¥ yr r . ‘ ind atec that

uch a oe - ane 52 "ot sroba! y wror wit ther

- ‘ . . ‘ a

‘ ce | : west to that vror, the prosecutor askec the

‘ .

juror if knowir tr narce anc of ’ uti tnec by him, she wou'd be inci uded

> * ** fe “ . - a¢ ‘- - . if

<< me © verTrer 3 aé ane anc ne Bic, Te sir ‘ is iv?

ight year olc child are insane or have some mental problem. This opinior.

changed by the proof. She said that she could judge

both the evidence of insanity and a defendant's evidence of insanity fair and

impartially She saic that her cind was not made up in concrete but it would

“A ‘*% >

require proof to change her mind Tole be Be Bei his juror was excused

for cause over defense ol jection. 003: Be We U¥e Prospective juror Bynum

was excused for cause after he stated that such @ person must be insane or

“nave severe menta! problems to cause harm to an eight year old child.

rter

’ .

evar

a hs

Lae

, >

V. PETITIONER WAS DENIED AN IMPARTIAL JURY BY THE

FAILURE OF THE TRIAL COURT TO ALLOW INDIVIDUAL

AND SEQUESTERED VOIR DIRE.

The trial court denied the Petitioner's motion of individual and seques-

tered voir dire at trial. Instead, the trial court allowed voir dire to take

place with 24 prospective jurors in the courtroom at a time. This procedure

prejudiced the Pecitioner due to the inability of trial counsel to determine the

effect of the intense pretrial publicity on the jurors as well as each individual

juror's reaction to questions concerning their position on the death penalty,

and the insanity defense.

llth Cir., May 31, 1983,

In the recent Eleverth Circuit case of McCorquodale vs. Balkcom,/ the

court held that en masse questioning of the jurors on Witherspoon vs. Illinois,

391 U.S. 510 (1963) grounds was insufficient to give the jurors an opportunity

to demonstrate a “willingness to consicer al] the penaities provided by state

law" or an opportunity to demonstrate an absence of any “irrevocable commitment

before the trial has begun, to vote acainst the penalty of death regardless

of the facts and circumstances that mignt emerge in the course of the pro-

ceedings." Witherspoon, 39] U.S. at 522, n. 2).

The Sixth Circuit has held likewise in cases dealing with pretrial publicity.

In U.S. vs. Blanton, 700 F.2d 298 (€6tn Cir. 1983) reversed on other grounds,

the Court held that “what courts consider the most important in determining

whether a presumption of prejudice snould arise is the strength of the venireman's

opinion on which he is asked to set aside." The court held there and in

McCorquodale that the strength of the group-questioned venireman's opinion is

impossible to ascertain.

The Tennessee Supreme Court, nowever, ruled that under state law the trial

judge has broad discretion in the examination of prospective jurors and his

acts will not be disturbed unless there is an abuse of that discretion. See

for example, State vs. Jeffers: ., 529 S.«.2d 674 (Tenn. 1975) cited in the

Supreme Court's opinion at page 91]. In the present case, certiorari sould

be granted to determine if there was an abuse of this discretion due to the

extensive pretrial publicity which proceeded this case. Twice before, in

Weakley and Obion Counties, the trial judge hac determined that the pretrial

-24-

publicity was so extensive that an impartial jury could not be impaneled. In

Obion County, individual and sequetereed voir dire was permitted yet still

found that an impartial jury was impossible to seat. when the trial was moved

to Memphis, approximately one-half of the jury pooled was excused because they

had made up their minds about the case. (Vol. 1, p. 25)

Where massive pretrial publicity has such a significant impact on the

jury pool, failure to allow individual and sequestered voir dire seriously

prejudices the defense in that defense attorneys are prevented from properly

raising prejudicial remarks for questioning a prospective juror on a particular

aspect of the case by the risk of contaminating the other prospective jurors

with the same prejudicial remarks. Where the death penalty is involved, the

trial court must require a thorough and informative quesioning of each juror.

McCorquodale vs. Balkcor, supra. Given the extensive pretrial publicity in

this case which caused venue to be changed twice in order to impanel an im-

partial jury and that one-half of the jury pool in Shelby County was excused

for cause, the question of what constitutes an abuse of discretion in denying

individual anc sequestered voir cire on witherspoon anc other issues shoulc be

decided by this Court

VI. PETITIONER WAS SUBJECTED TO DOUBLE JEOPARDY BY

HIS CONVICTION OF BOTH FELONY MURDER AND THE

UNDERLYING OFFENSE.

The Tennessee Supreme Court in the case of Briags vs. State, 573 S.wW.2d

157 (1978) adopted this court's rationale in Harris vs. Oklahoma, 433 U.S.

682, 97 S. Ct. 2912, 53 L.Ed.2¢ 1054 (1977) that dual convictions of felony

murder and the underlying felony are offensive to the double jeopardy clause

of the Fifth Amendment to the Constitution of the United States and Article I,

Section 10 of the Constitution of the State of Tennessee and may not stand.

In the recent case of Pryor vs. Rose, 699 F.2d 287 (1983) the Sixth Circuit

overturned a conviction of robbery with a deadly weapon and assault with intent

to commit first degree murder as a violation of the double jeopardy clause.

The Sixth Circuit cited the case of Blockburger vs. U.S., 248 U.S. 299 (1932)

to show that conviction of separate offenses will be deemed multiple punish-

ments for the same offense where conviction of one offense does not require

proof of any different fact fromthe proof sufficient for conviction of the

other. The court held that Tennessee multi-purpose first degree murder statute

permitted the jury to find the defendant quilty either by proof of premedita-

tion or by virtue of the felony murder provision in which premeditation is

provided by the underlying felony. Viewing the alternative to separately

charge offenses the cour: finds that the evidence supporting conviction of

robbery was al] that was needed to convict for assault with intent to commit

first degree murder since felony murder instruction relieved the prosecution

from having to prove preneditation. The court concluded that “a judge must

simply not give a felony murder instruction where it is possible to have a

conviction for \the underlying felony.”

Petitioner \was charged in the first count of his indictment with both

common law murder and felony murder. He was also charged with aggravated

rape and aggravated kidnapping. 1.C.A. §39-2-202(a) sets forth in the grounds

for first degree murder, both common law murder in the first degree ("willfull,

deliberate, malicious and premeditated killing") and felony murder (“committed

in the perpetration of, or in the attempt to perpetrate ... kidnapping...

-26-

rape... ." However, as have been previously noted, in Section III, on the

day the case was set for trial in Shelby County, and before any jurors were

selected, defense counsel requested to know exactly which grounds the State

was proceeding on. Prosecution responded that the State would proceed on

felony murder and the ccurt indicated that it would only charge on the ground

of felony murder. (Vol. 2, pp. 6-9) However, the trial judge subsequently

did charge on premeditated murder as well. (Vol. 30, pp. 24-88)

Petitioner's challenge to this in the Tennessee Supreme Court was rejected

on the grounds that the jury returned a general verdict of guilt to murder

(Count 1) and aggravated rape and aggravated kidnapping. The court quoted

T.C.A. 8460-16-11] as providing that "a general verdict of guilty will be

sustained if there is any one good count in the indictment sustained by proof,

although the other counts may be fatally defective.” The court then dis-

tinguished Brigas, supra, on the grounds that there the jury returned a special

verdict expressly finding the defendant guilty of murder in the perpetration of

a robbery. The court held the conviction of robbery could not stand because

of the Harris vs. Oklahoma rationa’e. The court stated though that a general

verdict may be related properly to the second count (the underlyino felony)

with the result the conviction coulc be upheld for first degree murder and

armed robvery. This would precluce any double jeopardy problems.

The assumption by the Tennessee Supreme Court is that there is no election

to proceed by the State solely on the issue of felony murder and acquiescence

in that election by the trial court. Therefore,a general verdict of guilty

to the first count in Petitioner's case resulted in a finding of guilt on

both grounds (premeditated murder and felony murder). Therefore, even under

the Harris decision, felony murder conviction might be reversed as to the

conviction on the underlying offense, but the conviction on premeditated

murder stands.

Petitioner contends that the election by the State and the acquiescence

by the trial judge prior to the selection of the jury, amounted to prosecution

<27-

solely on the issue of felony murder and therefore under the Harris vs.

Ok.ahoma, and Pryor vs. Rose, supra, rationale, a conviction on both the

felony murder and the underlying offense offends the double jeopardy clause.

This court should grant certiorari as it has done in Thigpen vs. Roberts,

No. 82-1330, to consider the question of whether or not the defendant has a

“substantial claim of deouble jeopardy” under Illinois vs. Vitale, 447 U.S.

410, 110 S.Ct. 2260,65 L.Ed.2d 228 (1980).

-26-

VII. PETITIONER WAS DENIED A FAIR TRIAL BY THE PLAYING

TO THE JURY OF PETITIONER'S TAPED CONFESSION AS

PART OF THE PROSECUTION'S CLOSING ARGUMENT.

During. closing argument, over defense objection, the prosecutor played

for the jury the entire taped interview of the Defendant. (Vol. 32, p. 2345)

This confession, approximately 30 minutes tong, is contained in the record at

Volume 20, beginning on page 1456 and ending on page 1486. The Tennessee

Supreme Court agreed that the use of this confession and closing argument was

an abuse of discretion, but held that it was harmless due to the fact the

confession was “wholly lacking in emotion impact, too long and too boring to

achieve the result asserted ty the Defendant (to emotionally enflame the jury

against the Defendant so the jury would kill him)." (State vs. Coe, p. 912)

The Tennessee Supreme Court held that the abuse of discretion was in allowing

argument which “greatly exceed in quantity the appropriate use in closing argu-

ment of exhibits, quotations from a transcript of testimony, and extra acts or

statements of parties or witnesses or like material." (State vs. Coe, p. 912)

In the recent case of dance vs. Zant, 82-8342 (11th Cir. January 24, 1983)

the Eleventh Circuit held that:

to prevail in his claim of prosecutorial misconduct and to

State a habeas case, petitioner must show that the prose-

cutor'’s actions were so ecregarious as to render the trial

fundamentally unfair. The assertec area must be of a con-

stitutional magnitude. This determination should Le made

by considering the totality of the circumstances; the

prosecutor's conduct should be evaluated in the context

of the entire trial.

In the present case, the use by the prosecutor in playing the entire taped

confession to the jury during closing argument amounts to a constitutional in-

firmity. This is an entirely different situation from counsel rereading short

extracts from depositions or the transcribed part of tne trial. The trial judge

tilted the closing argument in favor of the State by the use of such an unusual

procedure. The only way to top such a performance would be to have the

victim's grieving family again testify during closing argument. The scle pur-

pose of this procedure was to emotionally enflame the jury, @ purpose

-29-

rejected in Hance, supra, as rendering the trial fundamentally unfair.

(See also, Davis vs. Francis, C&2-182N (N.D. Georgia 1983).

Petitioner prays that a writ of certiorari issue to review the order below.

Respectfully submitted,

WOODS, BRYAN, WOODS & WATSON

A Professional Law Association

By:

Counsel for Petitioner

121 Seventeenth Avenue South

Nashville, Tennessee 37203

(615) 259-4366

I hereby certify that a true and exact copy of the foregoing Petition has

been placed with the United States Mail, postage prepaid, and addressed tc

William Leach, Attorney General, 450 James Robertson Parkway, Nashville,

Tennessee 37219 and to Hugh W. Stanton, Jr., District Attorney for Shelby

County, 210 Poplar Avenue, Room 30, Memphis, Tennessee 38103, this the 2 =

day of November, 1983.

-30-

RECEIVED

NOV 4.1983

IN TRE SUPREME COURT FOR THE UNITED STATES

Orrivc ve sae vec RK

October Term, 1983 SUPREME CoueT nS

' : .

ROBERT GLENN COE,

Petitioner

wo. 838-5705

vs.

STATE OF TENNESSEE,

ee ee ee ee ee ee ee ee

Respondent

MOTION TO PROCEED IN FORMA PAUPERIS

The Petitioner, Robert Glenn Coe, by nis undersigned counsel, asks

leave to file the attacned Petition for writ of Certiorari to the Supreme

Court of Tennessee without prepayment of costs and to proceed in forma pauperis

pursuant to Rule 53. Attached nereto is the Affidavit from tne Petitioner who

is currently incarcerated at the Tennessee State Pentitentiary in Nashville,

Tennessee in support of this Motion.

Respectfully submitted,

wOODS, BRYAN, WOODS & WATSON

A Professional Law Association

By:

Counsel for Petitioner Robert Glenn Coe

121 Seventeenth Avenue South

Nashville, Tennessee 37203

(615) 259-4366

a ee

83-5705 NOV 4.1983

Orrive vP int

CERTIFICATE OF SERVICE SUPREME nm oy SN

I hereby certify that a true and exact copy of the foregoing Motion

has been placed with the United States Mail, postage prepaid, and addressed

to William Leech, Attorney General, State of Tennessee, 450 James Robertson

Parkway, Nashville, Tennessee 37219 and to Hugh W. Stanton, Jr., District

Attorney General for Shelby County, 210 Poplar Avenue, Room 30, Memphis,

Tennessee 38103, this the =. day of Nev _ » 1983.

«2.

RECEIVED |

NOV 4.1993

Orrilt ur tht ULERK

IN THE SUPREME COURT OF SUPREME cCouRT Hie

THE UNITED STATES el,

October Term, 1983

ROBERT GLENN COE,

Petitioner

VS. No. 83 o 570 5

STATE OF TENNESSEE,

ee ee ee ee ee ee ee

Respondent

AFFIDAVIT

I, ROBERT GLENN COE, being duly sworn, depose and say, in support of

my Motion for leave to proceed without being required to prepay costs or

fees and to proceed in forme pauperis:

1. I am the Petitioner in the above-styled case.

2. Because of my proverty I am unable to pay the costs of said cause;

I own no real or personal property, I am incarcerated in the Tennessee State

Penitentiary in Nashville, Tennessee and receive no income from earnings.

3. I am unable to give security for this action.

4. Counsel is serving on my behalf without renumeration on this petition

for writ of certiorari.

5. 1 believe that : am entitled to the redress I seek in this action.

6. The nature of this action is briefly stated as follows:

; was convicted in Shelby County, Tennessee, Criminal Court

of murder in the first deoree on February 26, 1981. I was given

the death penalty for this offense. 1 was also found guilty on

February 27, 1981 of aggravated rape and kidnapping and received

life sentences for these offenses. 1 am being held under the

sentence of death at the Tennessee State Pentitentiary. My

vune 27, 1983 and a timely request for rehearing was denied

faa

i |

«tf

's%

)

‘s

“

)

«¢

durian ¢ en 4 = a7 4 séala

Guring the course o y tria n violation of my Constitu-

+n > | *~« «

tiona! rights and thet the death sentence was imposed upor

entence was posed upo

oe ir tn) + - ~ r c < in

€ ' ¥ at on f J L-Onst tut on2 rignts

of 4 <—

j we —

hha ie ~~ Salad Ce

Sel claial, dil Ut ot Ur" - eS a

RUSERK! GLENN COE

etatr oc + cere

a a

wweit y wv?

. a ;

. ~ _ “ ° er ‘hn > —

sworn to and subscribed before me tr the I da f HA

is ‘ ¥ RI nk mettre ’

Op 2

~ Seep ines

* r a res

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ct /%)

STATE v. COE

Tenn. 903

Cite an 645 SW 34 983 (Tenn 1963)

dered by the Court, wherein it is conceded

that the tax lien is unenforceable and that

the State cannot maintain any action af-

fecting plaintiff's title wo the realty in ques-

tuon because of the bar of the statute of

limitations. This concession renders plain-

uffs complaint moot and it is therefore

unnecessary thal we state our reasons for

Bot adjudicating the status of the tax Len

The petition to rehear is respectfully de-

nied.

COOPER, BROCK, HARBISON and

DROWOTA, JJ., concur

;

STATE of Tennessee, Appellee,

’

Robert Glen COE, Appellant

Supreme Court of Tennessee,

at Jackson

June 27, 1963

Opinion on Petution to Rehear

Sept 6, 1983.

Defendant was convicted in the Cnm-

nal Court, Shelby County, William Wil-

hams, J, of aggravated kidnapping, aggra-

vated rape and murder in the [first degree,

and he directly appealed. The Supreme

Court, Fones, CJ, held that: (1) abundant

probable cause existed to order arrest and

to arrest defendant without a warrant; (2)

evidence was sul/iment to sustain convic-

EXHIBIT A

tion, (3) male defendant lacked standing to

challenge grand jury composition on basis

that women were systematically excluded;

(4) impermissible double use of felony-rape

to convict defendant of rape and of felony-

murder did not occur; (5) although trial

judge erred in allowing State to replay en-

lire taped interview of defendant with in-

vestigating officer during State's closing

argument, error was harmiess beyond a rea-

sonable doubt; and (6) imposition of death

penalty was neither excessive nor dispro-

poruonate to penalty imposed in similar

cases

Affirmed

Brock, J., concurred in part and dis

sented in part with opimon.

l. Arrest @634(12)

Where composite drawing of suspect

and desenption of car. was publicued by

media, and officer received in’ormation

that Gesenption bore likeness to defendant

who was reported to have a vehicle similar

to one descnbed as dnven by suspect, abun-

dant probahie cause existed to order arrest

and Wo arrest defendant withoul s warrant

2 Homicide @=253(1)

Kidnapping e5

Rape @=51(1)

Evidence in prosecution for aggravated

kidnapping, aggravated rape and murder in

the first degree, including defendant's con-

fession whose reliabilty was greatly en-

hanced by identical fact testimony from

other eyewitnesses lo same events, was suf-

ficrent to sustain conviction.

3 Grand Jury 2%

Male defendant lacked standing to

challenge grand jury composition in county

on basis that women were systematically

excluded.

4. Grand Jury 2%

Even if male defendant had standing

to challenge grand jury compasilion in

ically excluded, proof adduced did not sup-

port a finding of requisite elements of sub-

Sianual underrepresentalion of women as

result of systemauc exciumon w grand jury-

selectuce process nor was Lhere a abow.ng of

duecrimunatory intent

& Indictment and laformation © 144.1(2)

Trial judge did not err im overruling,

for failure to show prejudice, defendant's

motioa to dmmuiss indictment because de

trict Attorney General was present during

grand jury proceedings, where there was no

evidence im record of what transpired dur-

ing the proceedings or when a vole was

taken of (the indictment

6& Jury &131(13)

Trial judge did sot err in overruling

defendant's motion to allow individual vor

dire of each prospective juror oul of pres

ence and bearing of other jurors, where an

imparual jury was selected, which was

properly committed w try defendant only

on evidence presented al inal, and which

was uuinfluenced by any pretnal publicity

or any information imparted to veoure dur-

ing vow due

7. Criminal Law @1152(2)

Trial judge has wide discreUoo in ex-

amination of prospective jurors and bis ac-

on will not be disturbed unkas Lhere w an

abuse of ducreuce

& Jeary 166, 131(17)

Tral judge dd not err in allowing

State & ask jurors if they believed that

anyone who would harm an eight-year-old

child would have to be insane to do any-

Ubing hike that and in excusing for couse

one of two jurors who appeared wo enter-

tain @ predisposition to conclude from that

fact alose Usal insanity was indicated as

State's question did not result in any com-

mitment of jurors beyond appropnate will-

ingness to decide msue of insanity on all of

the evidence adduced at tral, free of any

preconceived polos hat mere fact of barm-

9. Criminal Law o>) 166.16

Failure of State to examine jury oo

premeditation did not prejudice defendant

where proof on element of premeditation

was kaown in advante and comisted of

defendant's written and taped slalements,

plus dual causes of death, namely strangy-

lauoo and stabbing

10. Criminal Law @=29

Impermiassible “double use of felony-

rape to cosvict mot only of rape but of

felony-murder did not occur where defend-

ant was charged wilh common-law murder,

jury returned a genera) verdict, and record

contained proof of premeditauon beyond a

reasonable doubt, allowing court to sustain

coovicuon for common-law murder and [el-

ony-rape.

ll. Criminal Law @=695, 1154

Tra! judge has broad discretion in

what counsel may be allowed to do in clos

ing argument and will not be adjudged in

error absent abuse of discretion.

12 Criminal Law @715, 1171.41)

Although tna] court erred in allowing

State to replay entire taped interview of

defendant by investigaung offer dunng

State's closing argument, since it greatly

exceeded in quanUity sppropriate use in

closing argument of exhilits, quotations

from transcript of testimony, and extracts

{rom statements of parues or witnesses or

like material, error was harmless beyond «

reasonable doubt, since jt was the over-

whelming evidence that convicted defend-

OTe eae

13 Criminal Law ©» 1206.22)

Homicide > 354

Impositaon of death penalty by jury in

prosecution for aggravated kidnapping, ag-

grevated rape and murder in the first de

STATE v. COE

Tenn. 905

Cie os 086 5. W238 983 (Teme 1963)

gree was peither excessive nor dispropor-

Gonate to penalty imposed in similar cases.

14. Homicide 3H

Evidence in prosecution for aggravated

kidnapping, aggravated rape and murder in

the first degree, including fact that victim,

if she had lived, could have identified de-

fendant as man who kidnapped and raped

her, supported jury's finding of aggravated

circumstance that murder was committed

for purpose of avoiding, interfering with, or

preventing « lawful arrest for prosecution

of defendant

Walker Gwinn, Memphu, for appellant

Witham M. Leech, Jr, Atty. Gen, Gordon

W. Smith, Asst Atty. Gen, Nasbville, for

appellee.

OPINION

FONES, Chief Justice.

This « s direct appeal of « death penalty

case. Defendant was convicted of aggrava-

led kudnapping. aggravated rape and mur-

der in the first degree. The jury fixed bis

punishment at life on each of the first two

offenses After a txfurcated sentencing

hearing, Une jury found four aggravaung

carcumstances and po milugsliog cwcum-

stances and imposed the death penalty

The sqgravating arcumstances found were

‘l) Une murder wes committed against 4

person bas than twriive years of age and

the defendant was wwer eighteen years of

age, (2) Une murder was especially beinous,

atrocikus © ervel in Uhat it involved torture

or depravity of mind, (3) the murder was

committed for Use purpose of avosding pros

ecution of the defendant; and (4) the mur-

der was aramitted while tne defendant was

engaged in commitung and fleeing after

commuting rape and kidnapping

The victum, Cary Medlin, might years of

age, lived in Greenfield, Tennessee with her

1. Defendant's sstement gven September 7.

mother Charlotte Medlin Stout, her step-fa-

ther Mickey Stout, and her step-brother Mi-

chacl Stout, also eight years of age. On

Saturday September 1, 1979, Labor Day

Weekend, Cary and Michael went nding on

Ubeir bicycles about 5.30 P.M.

Defendant was living is McKenzie, Ten

nessee, end working at a body shop Hu

wife and baby had gone to Dresden, ap

proximately fifteen miles from McKenzie to

visit his wife's sister, Vicky Box. When

defendant got off work thai Saturday af-

ternoon he drove toward McKeaze to join

his wife and baby. Because « bridge was

out on the Liberty Road, his route to Dres-

den was through Greenfield

When defendant arrived in Greenfield, be

began looking around for someone Ww

“flash” at because he “had had the urge Wo

flash all day but could not find anyone w

fiash at”!

Defendant drove into Une parking lot of a

church in Une seighborhood where the vic-

um lived and parked Soon he saw Cary

and Michael on their bicycles, left tbe park-

ing lol, pulled slong side of Ubem, and asked

Cary © show him where ber father lived

Margaret Stout, Mickey Stout's mother,

lived on the street directly behind ber son's

house, aod Cary and Michael had just paid

her a visit, looking for some candy. Shortly

thereafter she was looking out the window

as she talked on the telephone and saw her

grandson and Cary standing by their bicy-

clea and talking © & man in «@ car she

described as 8 two-toned brown four door,

Ube top being darker than the botlom

Defendant induced Cary and Michael w

follow him, apparently from in front of

Margaret Stout's house to Ube church park-

ing lot Cary got im the car with defendant

and told Michael to watch her bicycle De

fendant drove around until he found a lose

ly, deserted gravel road that led sowhere

and was well screened by trees with a fence

row on each side.

Defendant's September 7, 1979 statement

related that he stopped the car, exposed

906 Tenn

himself to Cary, fondied her, starting mas-

turbating and got on top of her, but that he

did not know if his penis went into her or

not. Defendant stated that when he fin-

ished bis sex act, Cary told bim that Jesus

loved him, and he got so upset he decided

kill ber. First, be tried to choke her Ww

death with bis bands but although she got

blue im the face, abe would not die. He

then stabbed her in Une neck with his pocket

knife After watching her bleed, “struggle

and jerk” for o while, he left her beside the

road in a dense thicket and drove awa)

Loca! and state police were notified early

Saturday evening thai Cary was missing,

and at first they Unought she might have

been kidnapped for ransom, but after re-

ceiving no demand for ransom, on Sunday

afternoon an intensive search of the area

was conducted and ber body discovered

about 2:00 P.M, approximately two miles

from Wwe town of Greenfield

According to Donald Box, defendant's

brother-in-law, defendant arrived at the

Box home in Dresden sbout 7:45 or 8:00

PM Saturday night He was drving a

1972 Ford Torno, was not intoxicated or

under the influence of drugs but was nerv-

ous, seemed to have something on his mind

and said to his brother-in-law, “Donnie, |

would be better off dead.”

Defendant, his wife, and child, returned

to McKenne on Sunday, September 2, but

they spent Sunday night and Monday night

with frends, Janet and Darrell Rosas who

lived in the Big Buck community about ten

miles from McKenzie. Janet Ross testified

that after visiting earlier in the day they

came beck about 10:00 PM. Defendant

told them that he was in trouble with the

law, that be and his cousin had gone to

Camden to get some manjuana and some

acid, that his cousin had shot a state troop-

er, and that defendant had stabbed one in

the throat

On Monday, Labor Day, at defendant's

request, Janet Ross and defendant's wife

bought some hair dye and that night dyed

defendant's hair black. He had been de-

655 SOUTH WESTERN REPORTER, 24 SERIES

scribed by witnesses as having dirty blond

hair, shoulder length On Tuesday morn-

ing, defendant went to a used car dealer-

ship in Gleason, Tennessee and traded his

1972 Ford Torino, silver gray with a brown

vinyl top, for a 1972 blue Mustang. Later

that day Margaret Stout and Michael Stout

were driven to the prespuses of the Glesson

dealer where Ubey kdentified the Torinc as

the vebucle Ubai had been in Greenfield on

Saturday afternoon and that Cary had en-

tered and departed the church parking lot

Barry Jones, owner of Crestview Motors,

the Gleason used car dealer, testified that

he had sold the 1972 four-<door Ford Tonno,

silver/gray with brown viny! top, to defend-

ant in June of 1979 Hus wife, Aun

dones, did al! of the paperwork connecte!

with her husband's used car business. She

testified Unal she wrote up the June sale of

the Ford Torino Ww defesdant and that she

remembered that he hac dirty blond baw at

that Ume, that she saw him again on the

morning of September 4, and wrote up the

trade of the Torino for the blue Mustang at

apprommately 10:00 AM, that she nouced

that his bair had been dyed black; that

there were black smudge marks on his fore-

head, and that it was an obviously sloppy

dye job. She testified that her husband ie/t

while she was wnting up the papers and

that after defendant and his {mend left, the

chief-of-police of Gleason came by and

asked if Urey had traded cars with anyone.

She told bim about the trade with defend-

ant aod showed him the Ford Torino. The

police chief made a telephone cal! and then

requested that the Ford Torino be locked up

and not shown lo anyone except law offi-

cers, Mra Jones testified that shortly

thereafter the place was “covered up with

law officers” looking at the car and that a

lady and a little boy came by and were

shown the car by the law officers

Darrel] Ross was with defendant when he

traded tbe gray-brown Torino for the biue

Mustang Tuesday morning, when defendant

went to the bus station in Huntingdon to

buy a bus ticket that afternoon and still

STATE v. COE

Cm os 086 8 Wd 083 (Tem | 983)

later when defendant returned to the bus

Station to leave for Marietta, Georgia De-

fendant was arrested at the Huntingdon

bus station Defendant had identification

tags on his baggage and the name thereon

was James Watson.

Agent Daniel and Inspector Blackwel

transported defendant from Huntingdon to

the Weakley County Jail in Dresden Dan-

ie] testified that they did not question de-

fendant during the trip; that when they

arrived and turned defendant over to the

aberiff, they went down the hal, spoke

briefly to the District Attorney seeking to

find out if defendant's wife had been inter-

Togaied, then returned to the sheriff's of-

fice where defendant asked to talk to Dan-

iel in private This occurred seven or eight

minutes after their arrival) at Ube Weakley

County Jail When Daniel and defendant

were alone, defendant said, “] did it,” and

in response to the question, “You did what,

Robert” he said, “] am the one that killed

that litue girl” With Inspector Biack well

also present, defendant then consented to

talk to Danie! on tape. The tape recording

was played in open court in the presence

and hearnng of the jury and revealed that

the quesuoning began at 7:49 P.M. on Sep

tember 4, 1979, at the Weakley County Jail

Defendant's responses to Daniel's ques-

toons revealed that he went to Greenfield,

saw a little pri and a litue boy on bicycles,

that he stopped them and told her that he

was looking for her daddy in order to lure

her into the car with him, having been

unsuccessful in several attempts at flash-

ing, that be drove and that the litte gir!

and boy rode tbeir bicycles to a church

where she left her bicycle and got im the car

with him and they drove away from the

eharch Those details were identical to

those related by litue Michael Stoct In

the taped statement be also told of driving

around uati] he “found that gravel road;”

that after be had raped the litile girl and

she told bim that Jesus loved him, be

choked ber and stabbed her with his pocket

knife

on the porch that “will remember me or my

Herbert Clement, aged eighty-five, testi-

fied that he lived in that bouse about a mile

out of Greenfield; that he was sitting on

his porch between 5:30 and 6:00 P.M. on

Saturday afternoon, September 1, 1979,

when a cer drove by going south to the bal!

park and then came back by going north;

that he recognized the little gin] passenger

because he had seen her riding ber bicycle

0D previous oceasions; and that be identi-

fied the victim, Cary Medlin, from her pho

tograph as the passenger in the car He

was unable to describe the car or to de

scribe the man driving it

Doctor James Spencer Bell, a board cert:-

fud pathologist and Chief Deputy, Shelby

County and State Medical Examiner, test-

fied Unat be performed an autopsy on the

body of Cary Mediun on September 3 and 4,

1979. He found evidence of manual stran-

gulation and a stab wound to the neck that

cul the carotid artery and jugular vein,

either of which could have produced death.

Tt was his opinion that both the stranguls-

ton and the stabbing were applied while

Cary was alive, that she “lived a short ime

after Lhe app!.cauuon of these two and death

then resulted.” He found “a laceration of

the hymenal mng and a tear and abrasion

extending up the vaginal canal into the

908 Tenn 655 SOUTH WESTERN REPORTER, 24 SERIES

internal aspects of the body.” Bruises and

lacerations were also found in the anal ares

and swabs were taken from both the vagi-

na) and anal areas He testified that the

bruises and lacerations in the vaginal and

ana) areas were “live” lesions that were

inflicted prior to death

A forensic serologist testified that she

analyzed the swabs taken by Dr. Bel! from

the body of the vicum and found the pres

ence of spermatozoa upon testing the mat-

ter upon the vaginal and anal swabs

(1] Defendant contends that admusion

of the statement given by defendant on

September 7, 1979, and implicitly the tape,

wherein defendant confessed. was errone-

ous because the State had failed to prove

probable cause for arresting defendant at

the Huntingdon bus stauion and therefore

the confession was the product of an illegal

arrest. There is no ment to that issue

Alvin Daniel tesufied that he was the

Tennessee Bureau of Investigation agent in

charge of the invesugstion of Cary Mediin's

murder He testified that s composite

drawing of Ube suspect and s description of

the car was publicized by the media, that

he received information that the description

bore s likeness to defendant who was re-

ported to be « resident of McKenzie and

had a velucle like the one described as driv-

en by the suspect; that agents were dis

patched to McKenne who learned that de

fendant had traded his car at Crestview

otors is Gleason, a town about eight or

miles from McKenzie; that he tele

THT

rte

eli

FAE

fei

report that two agents had stopped a blue

Mustang occupied by Darrell Ross and

Tammy Coe, defendant's wife, and they re-

ported that they had driven defendant to

the bus station in Huntingdos, that he had

dyed his hair black and was leaving wn.

Danie] then broadcast a directive that de

fendant be arrested at the bus station in

Huntingdon. We hold that abundant prob-

able cause existed to order the arrest and to

arrest defendant without a warrant The

officers responding to Daniel's request were

entilied to assume that he had information

constituting probable cause to order the

arrest Cf, Whiteley v. Warrien, Wyoming

State Penitenuary, 01 US 560, 568, 91

SC. 1081, 1037, @ LEd2d 36 (1971)

[2] Defendant's argument thal the evi-

dence was insufficent to support the guilly

verdict ws predicated principally on the alie-

gation Unat the State relied ninety-nine per-

cent oo Coe's actions and slalements after

the fact which, it is said, was unreliable

because Coe is a mentally disturbe! indind-

ual wilh buzarre fantasies and weird Lehav-

ior

The jury rejected defendant's plea of in-

sanity and that finding was supported by

overwhelming lay and expert tesumony

Hw wie Tammy, his sster-inlaw and

brother-in-law, Vickie and Donald Box, and

bus {mends Janet and Darrel) Ross, the per-

sons he spent all of his ime with for three

days and mghts immediately following the

murder, teelufied wilhoul exception that bu

behavior was normal except for concern

Unat he might be apprehended by polixe—

which be accounted for to them by miiaung

the false story Unat he and his cousin had

bad an encounter with two state Lroopers.

It m true that Coe’s actions and state

ménts after the crime point unerringly to

hw guilt’ The reliability of his statements

was greaUy enhanced by identical fact tes

tumony from other eyewitnesses to the

same events. The recitation of evidence in

secon one of this opinion speaks for itself

~ STATE v. COE

Tenn. 909

Cite os G56 5 W.2d 983 (Teen 1983)

on the issue of the sufficiency of the evi-

dence to convince any rational trier of fact

of the guilt of Robert Glen Coa of kidnap

ping, rape, and murder. We find that the

evidence of defendant's guilt fully setusfied

the standard prescribed in Jackson v. Vir-

ginia, 43 US. 907, 99 SCt 2781, 61 LEA ad

660 (1979) and TRAP. 1Xe).

IV.

Defendant insisted that the indictment

should have been dismissed because the

grand jury in Weakley County that re

turned it did not represent a fair cross-scc-

tion of the community. Defendant at

tempted to show thal women were substan-

tially under-represented and had bees for

many years systemauically excluded.

Defendant does not challenge the compo-

sitios of tbe petit jury venire Proof was

adduced that defendant's grand jury pool

consisted of two hundred women, five bun-

dred men, or 704)% male, 2.59% female

Three women and ten men served on the

grand jury that indicted defendant The

three preceding grand jury pool had fe

male percentages of 42%, 37.77% and

2235% The population of Weakley County

eligible for jury service was shown to be

SO. @™% female based upon tbe 1970 census

The tesumony of the jury commussioners

disclosed that Urey choose Une jurors from

the voter registravon lists, generally select-

ed people they or others knew that met the

Statutory critena, divided thew selections

proportionately within the alphabet, and

testified they specifically sought females,

blacks, and young voters in an amount pro-

portionate to the county population.

The State contends that defendant does

not have standing to challenge the exclu-

sion of women from grand jury service.

The State's position, in summary, is that the

composition of grand juries in State courts

is not subject to challenge as violative of

the Sixth or Fourteenth Amendments on

the grounds of gender discrimination, as

Sistingvisbed from racial discrimination,

with Ube exception thal an equal protecton

challenge could be mounted by a member of

the group against whom there is alleged

discrimination. This, of course, excludes a

challenge by a male defendant cf female

discrimination from service apon the grand

jury.

The State relies primarily upon Alexan-

der v. Louisiana, 05 US 625, $2 S&C. 1221,

$1 L.Ed2d 536 (1972) There the U.S. Su

preme Court had under consideration the

idenucal challenge before us, that of a male

complaining of constitutionally improper

exclusion of women from grand jury ser-

vice. The Supreme Court denied relief to

Alexander and made the following com

ments on the state of the law applicable to

bis constituUonal claims:

This claim i novel in this Court and,

when urged by a male, finds no support

in our past casea. The strong constitu-

tiona! and statutory policy against racial

discnmination has permitted Negro de

fendants in criminal cases to challenge

the systematic exclusion of Negroes from

Also, those groups arbitranly excluded

from grand or petit jury service are

ihe mee!ves afforded an appropriate reme-

dy Cf. Carter v. Jury Commimion of

Greene County (396 U.S. $20, 90 SC. 518,

2% LEd2d S49), supra But there is

nothing in past adjudications suggesung

that peuloner himself has been denied

equa! protection by the alleged exclumon

of women from grand jury service. Al-

though the Due Process Clause guaran-

lecs petilvoner a fair tial, it does not

require the States to observe the Fifth

Amendment's provision for presentment

or indictment by @ grand jury. In Duo-

can v. Louisiana, 391 US 145, & SCL

1444, 20 L.Ed2d 491 (1968), the Court

held that because trial by jury ia criminal

cases under the Sixth Amendment »

“fundamental to the Amercan scheme of

justice,” id., at 149, 88 S.CL, at 1447, such

a right was guaranteed to defendanls in

state courts by the Fourteenth Amend-

ment, but the Court has mever beld that

910 Tenn.

federa] concepts of a “grand jury,” bind-

ing on the federal courts under the Fifth

Amendment, are obligatory for tbe

States. Hurtado v. California; 110 US

516, 538, 4 SCu 111, 122, @ LEd. 22

(1884). Id 405 US. at 633, 92 SCt at

1226-1227.

Also, in Cestaneda v. Partida, 430 US.

482, 97 S.Cu 1272, 51 L.Ed.2d 498 (1977), the

Supreme Court held that

In order to show that an equa! protection

violation has occurred in the context of

grand jury selection, the defendant must

show that the procedure employed result-

ed in substantia] under-representauon of

bus race or of the identifiable group w

which he belongs. Jd. at 4H, 97S Cu at

1230, ,

Defendant contends that Taylor v. Louisi-

ana, 419 U.S. 622, 95 S.Ct 682, 42 L Ed 2d

690 (1975) supports his assertion that he

may challenge the exclusion of women from

grand jury service. In Taylor, a male al-

leged gender discrimination, that w, the ex-

clusion of women from the peut jury ve-

mire. In our opinion Taylor did not alter

the pronouncements quoted above from A/-

exander and Castaneda with respect to gen-

der disceriminauee in the composition of

grand juries In defendanis reply bref he

directs our attention to a foolnote in Alex-

ander v. Loumiana, supra at 626 fn 3, 92

S.Cu at 1223, fo. 3, which reads in part as

follows

The principles that apply to the systemat-

ie exclusion of potentual jurors on the

ground of race are essentially the same

for grand juries and for petit junes, how-

ever

The accuracy of that statement w not ques

tioned but defendant Coe's attack uw based

upon geader discrimination, not racial dis-

crimination *

(3,4) We bold that defendant lacks

standing to challenge the grand jury com-

position in Weakley County on the basis

2 For « more detailed analysis of the United

States Supreme Court cases on ibe issue of

655 SOUTH WESTERN REPORTER, 24 SERIES

that women are systematically excluded

We are also of the opinion that if we con-

proof adduced did not support a finding of

the requusite elements of substantial under-

representation as a result of systematic ex-

clusion in the grand jury selection process.

Also \here was no showing of discriminato-

ry intent

{5} Defendant contends thal the indict-

ment shauid be dismissed because the Du

unct Altorney General was present dunng

the grand jury proceedings on December 1),

1979

When defendant's motion to dismuss came

on for hearing in the tral court, defend-

ant’s counsel stated that he assumed it

would be up lo the District Attorney Gener-

al Wo slate what Wook place during the grand

jury proceedings The District Attorney

General's resyonse was simply that the

State dened that defendant was prejudiced

by anything that occurred at Ube grand jury

prvceed. nga

There being no evidence in this record of

what transpired during the proceedings or

when the vole was Laken on the indictment,

we mast sustain the action of the tial

judge in overruling defendant's motion, for

failure to show prejudice See, eg, Tiller

v. State, G00 S W 2d 709 (Tenn. 1980).

Defendant's next meue asserts that the

trial judge erred in overruling his motos to

allow individual vow dire of each prospec-

lve juror out of Uhe presence and hearing

of other jurors.

The tnal judge clearly indicated that if,

as the voir dire examination progressed, it

appeared appropnate lo conduct individual

vou dire be would do so.

Mandiag Mvoived bere, see Bea! ¥ Rose, 532

F Supp. 308 (M D Tena 1981)

STATE v.COE Tens. 9]

Cite os 664 5 W236 083 (Teen 7 oe

Defendant points to the “tremendous”

number of jurors that were excused on the

basis that they had made up their minds

about the case based on pre-trial publicity

Venue was removed from Weakley County

to Obion County on May 5, 1980 Jury

selection began in Obion County on May 19,

1980, “od continoed until May 27, when

defendant again moved for a change of

venue which was granted The trial began

in Shelby County on February 10, 1981 In

spite of the fact that s number of Sheiby

County jurors were excused because they

were equivocal about the effect of pre-trial

publicity, nothing inflammatory nor preju-

dieial to defendant was revealed during the

vou dire.

(6&7) We have carefully reviewed the

extensive voir dire examination as recorded

18 the transcript. Ib our opinion, an impar-

al jury was selected, properly committed

to try defendant only on the evidence

Presented at the trial, uninfluenced by any

pre-trial pubbenty or any information im-

parted to the venire during the voir dire

The tnal judge has wide discretion in the

examination of prospecuve jurors and hus

action will pot be disturbed unless there is

an abuse of ducretion See, eg, State y

Jefferson, 529 S W2d 674 (Tenn 1975).

vil

(8) Defendant insists that the tna!

judge erred in allowing the State to ask

jurors if Uney believed that anyone who

would harm an eight-year-old child, “would

have to be insane to do @ thing like that,”

and in excusing for cause ope or more jur-

ors who appeared to entertain « pre-disposi-

Woe to conclude from that fact alone that

inaanity was indicated

Defendant argues that such qvesuons

commutted the jurors, in advance of hearing

the evidence, “to the proposition that they

would pot feel that the defesdant was in-

sane, by reason of the fact that he

deliberately killed an eagbt-yearold girl”

We disagree that the State's questioning

Fesulted ip any commitmeat beyond the ap-

propriate willingness to decide the issue of

insanity on all of the evidence adduced at

the trial, free of any preconceived notion

that the mere fact of harming an eight-

year-old child constituted prima facie evi-

dence justifying & presumpuon of insanity.

This imsue has no merit.

VL.

{9} Defendant says the trial court erred,

“in Uying Uhis case as @ common-law pre

meditated murder charge after stating in

chear and unequivocal terms, prior to the

vow dire examination of the jurors, that he

would not charge on common-law premed,-

tated murder.”

The first count of the indictment re

turped by the Weakley County grand jury

charges defendant with both common-law

premeditated murder and felony murder

Defendant's brief concedes that and siso

makes the following conceasion

“We are not even arguing that the State,

with the consent of the defendant, could

Barrow the imue to felony murder.”

On the day the case was set for trial in

Shelby County and before any jurors were

brought into the courtroom, the uial judge

and counse! were going over s number of

preliminary matters and the trial judge ob-

served that the first count of the indict

ment charged both common-law murder in

the furst degree and felony murder and that

in Shelby County, the practice was to

charge common-law premeditated murder

and felony murder in two separate counts

The Weakley County prosecutor indicated

the State was proceeding only on the felony

murder count, but the Shelby County prose

culor said he understood the State was pro-

ceeding on both common-law and felony

murder. At that point the trial judge said

that he would “proceed” on the assumption

Uhat there was a one count indictment

charging felony murder.

After the jury was selected but before

any lesimony was presented, out of the

presence of the jury the trial judge in-

—

912 Teno.

formed counsel that be would not be bound

by the State's election to proceed only on

felony murder and that he might charge

common-law murder ip the first degree;

that it worried him not to “charge on some-

thing that was set forth in the indictment

Clearly, your common-law count of premed-

itation is set forth.”

The State did not examine the jury on

premeditation. Defendant has cited no au-

thonty sor suggested how he was preju-

diced by the failure to examine the jury on

premeditation or what the examination

vould have involved The proof in this case

on the element of premeditation was known

in advance and consisted of defendant's

written and taped statements, plus the dual

causes of death, to wit: strangulation and

Stabbing. In our opinion, any emphasis on

premeditation doring voir dire would not

have been advantageous to defendant. We

find no ment in thus issue and it is over-

ruled

{10} Defendant says that the crime of

rape was used to convict him of felony

murder and that to use the same felony and

convict bim of rape violated the double

Jeopardy provisions of the State and Feder-

al Consututions

Defendant argues that he could not have

been convicted of common-law murder be-

cause of the same sequence of events al the

tra! that are stated in section VII of this

opinion, therefore double use of the felony

rape has impermissibly occurred. Thai as-

sumption is erroneous The jury returned a

general verdict TCA § 40-18-11] pro

vides that, “A general verdict of guilty will

be sustained if there is any one good count

in the indictment sustained by proof, al-

though the other counts may be fatally

defective” This record contains proof of

premeditation beyond a reasonable doubt,

silowing the courts to sustain a conviction

of defendant for common-law murder ard

the felony of rape. In Brnggs v. State, 573

S.W 2d 157 (Tenn 1978), the jury returned s

655 SOUTH WESTERN REPORTER, 24 SERIES

special verdict, expressly finding defendant

guilty of marder in the perpetration of s

robbery. We held that the conviction of

robbery could not stand because of the

jury's special verdict but also noted that if a

general verdict bad been returned, defend-

ant having been indicted for both eommon-

law and felony murder, convictions of com-

mon-law murder and the felony of robbery

could have been upheld. 573 S W.2d at 158.

(11,12) Defendant contends that the

tral judge erred in overruling defendant's

objecuion and in allowing the State to re

play the entire taped interview of defend-

ant by 7.Bl. Agent Daniel during the

State's closing argument. As defendant

readily concedes, the tna! judge has broad

disereuion in what counsel may be allowed

to do in closing argument and will not be

adjudged in error absent an abuse of discre-

tion State v. Sutton, S62 S W.2d 820, 823

(Tenn.1978) We agree with defendant that

the tna! judge abused his discretion in al-

lowing the State to replay the tape. How-

ever, our reason for finding the trial judge

in error differs from that of defendant

Defendant asserts that it was improperly

allowed because its sole purpose was to

“emotonally inflame the jury against the

defendant so the jury would kill him.” In

our opimion, the taped statement was whol-

ly laclong in emotional impact, too long and

too boring to achieae the result amerted by

defendant We hold Unat it was ap abuse of

discretion because it greatly exceeded in

quanuty the appropriate use in closing ar-

gument of exhibits, quotations from a tran-

scmpt of testimony, and extracts from

statements of parties or witnesses or like

matenal. Nevertheless, we are convinced

that i was an error that was harmless

beyond a reasonable doubt. In our opinion,

ut was the overwhelming evidence Lhal con-

victed defendant, not the replaying of the

tape dunng chosing argument.

Defendant asserts thal Ube sentence of

death upposed by the jury was excensive

STATE +. COE

Tena. 913

Cite as 645 5. W246 983 (Team 1983)

and disproportionate to the penalty imposed

in similar cases.

Defendant argues that, “at least in mod-

ern history,” no one has been sentenced to

death who has spent over two years in

mental institution Defendant further says

that of ninety tnal judge reports on cases

wherein the death penalty was sought,

eight of the defendants apparently had per-

sonality disorders and only one of the eight,

Ronald Rickman, was senténced to death

See State v. Groseciose, 615 SW2d 142

(Tenn 1981).

(13) From our review of this case, in-

cluding the tnal judge reports and cases

mentioned, we are of the «pinion that the

imposition of Une death penalty by the jury

Was neither excessive por disproportionate

to the penalty umpgeed in similar cases

See, eg, State v. Johnson, 632 S.W 2d S42,

548 (Tena. 1982}

xii

[14] Defendant says the evidence does

Bot support the finding of the jury that the

murder was commutted for the purpose of

avoiding, interfenng with, or preventing a

lawful arrest for prosecution of the defend-

ant or apother

This contention was pnmarily based upon

defendant's asseruon that the jury could

not socept part of defendant's confession

and reject the part wherein defendant said

he killed the victim because she said that

Jesus loved him

There can be no doubt from the circum-

stances of this case that the victim, if she

had lived, could have identified defendant

as the man who kidnapped and raped her

and that therefore he had a strong motiva-

ion to silence her forever as a wWilness

The record also revealed that defendant

frequently told false stories and made up

false events Several members of the \ic-

tm's family testified that 1 would have

sdeen out of character for Cary Medlin w

make the slatement ascribed to her by de-

fendant. In our opinion, the evidence sup-

ports the jury's finding of this aggravating

circumstance beyond a reasonable doubt

and we find no merit in this issue.

Xii.

Defendant's contention that the Tennes-

see death penalty statutes are unconstitu-

tional has no ment, having been considered

and overruled in several prior cases. Sev,

eg. State v. Austin, 618 S. W.2d 738 (Tenn.

1981).

The judgment of conviction of the three

offenses and the sentences imposed in the

trial court are affirmed. The death sen-

tence will be carned out as provided by law

on the tenth (10th) day of October, 1983,

unless stayed by appropmate authority

Costs are adjudged against defendant

COOPER, HARBISON and DROWOTA,

JJ., concur 7

BROCK, Justice concurring in part and

dissenting in part

I concur in the opinion of the Court in all

respects except the constilutionality of the

death penalty. With respect to the consti-

tutionality of the death penalty, | adhere to

my views as set oul in my dissenting opin-

won in State v. Dicks, Tenn., 615 S W 2d 126,

132 (1981)

OPINION ON PETITION TO REHEAR

FONES, Chief Justice

A petition to rehear has been filed on

behalf of Robert Glen Coe, has heen given

careful considerauion by the Court and

found to be without merit.

The petiuon w respectfully denied

EXHIBIT B

CONSTITUTIONAL PROVISIONS

Amendment 5

No person shall be held to answer for a capital, or otherwise infamous

crime, unless on a presentment or indictment by a arand jury, except in cases

arising in the land or nava) forces, or in the militia, when in actual ser-

vice in time of war or public danger; nor shall any person be subject for the

same offense to be twice put in jeopardy of life or limb; nor shall be com-

pelled in any criminal case to be a witness against himself; not be deprived

of life, liberty, or property, without due proces: of law; nor ivate

property be taken for public use, without just compensation.

Amendment 6

In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the state and district wherein

the crime shall have been committed, which district shall have been previously

ascertained by law, and to be informed of the nature and cause of the accusa-

tion; to be confronted with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have the assistence of

counsel for his defense.

Amendment &

Excessive oai] shell not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.

Amendment 14, Section 1

11 persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of the stete

wherein they reside. No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States; nor shal)

any state deprive any person of life, liberty, or property, without due process

of law; nor deny to any person within its jurisdiction the equal protection of

the laws.

EXHIBIT C

STATUTORY PROVISIONS

T.C.A. 822-2-201 Establishment - Members’ qualifications - Compensation.

(a) There shall be a board of jury commissioners for each county ie this state

having @ ponulation of not more than one hundred forty-nine thousand nine

hundred ninety-nine (149,999) and for each county in this state have a popu-

lation of more than four hundred eignty-two thousand (482,000) according to

the federal census of 1950 or any subsequent federal census, to be appointed

by the judge or judges of the circuit court or courts, as the case may be,

in each of said counties, acting conjointly with the judge or judges of the

criminal court, if such there be in such counties, and acting conjointly with

any chancellor or other jecge, if such there be, whose duty it shal] be to hold

the circuit or criminal court in such counties.

(b) The board of jury commissioners for each said county shall consist of three

(3) discreet persons who are at least twenty-five (25) years of age, who are and

have been residents of the county for at least five (5) years and reside in

different sections of the county, who are not practicing attorneys at law or

State or county officers, and who have no suit pending in any one (1) of said

Courts above mentioned at the time of appointment. No person who has solicited

or caused to solicit his or her appointment to said board shall be eligible for

appointment thereto. Each member of said board shall be paid the sum of twenty-

five dollars ($25.00) for each day or fraction thereof spent in the discharge of

the duties of the board, which shall be paid by the county from its general

fund. Provided, however, in counties having a population over six hundred

thousand (600,000) according to the 1960 federal census or any subsequent federal

census, the chairman of the jury commission shall devote full time to the work

of the commission and the salary for his services shall be set by the county

legislative body and the county legislative body shall set a sum per day for the

service of the remaining jury commissioners.

T.C.A. §22-2-302 Selection of names for jury list - Jury book - Jury box -

Method of selection in Shelby County. {a)(1) Said board of jury commissioners

shall meet in the circuit court clerk's office at a time fixed by the judge or

Judges appointing said board, and on the first Monday in the month in which

such original meeting is held every two (2) years thereafter, and shall then

anc there select, from tne tax records and the permanent registration records

of the county, or other available and reliable sources, a list of names of up-

right and intelligent persons known for their inteority, fair character and

sound judgment who ére otherwise legally qualified to serve as jurors from each

district in the county and in proportion to the population of such districts,

as near as may be, to serve as jurors in the circuit and criminal courts of such

county for the ensuing two (2) years.

(2) The number of such names to be placed on said list shall be thatnumber

determined by the judge or judges appointing the board as provided in part 1.

(3) Said list shall constitute the jury list for two (2) years from the making

tnereof and shall not during said two (2) years from the making thereof and

shal] not during said two (2) years be added to or taken from, except as herein-

after provided.

(b)(1) The circuit court clerk as clerk of the board shall purchase a suitable

and well-bound book in which to record the list.

(2) At the top of each page shal! be written or printed the words, “Jury list

for County." Said book shall be so ruled as to leave a space at the

left-hand side of each page for the names and at the right-hand side for such

entries as hereinafter provided for.

(3) Preceding the list of names in said book shall be written these words,

“Jury List Selected by the Board of Jury Commissioners for County,

on the day of » 19." ~=—s*sImmediately following this

heading shall be recorded the list of jurors selected, placing one(1) name or

each line, arranging the names in alphabetical order and numbering ther on

the left-hand side consecutively, beginning with No. 1. After each name there

shall be placed in parentheses the initials of the commissioner proposing such

name, but no name shall be placed on such list except by a majority vote of

the board.

(4) At the end of the list shall be written and signed by the commissioners

the following: "We, the Jury Commissioners of County, certify that

the foregoing is the jury list selected by us for the next two (2) years for

said county. This the day of ‘Sn

(c)(1) The names on said list preceded by the original number thereof and

followed with the initials in parentheses of the commissioners who proposed the

name shall be written by the clerk on tickets or cards of paper uniform in size,

and placed in a box to be known as the jury box in the presence of the com-

missioners, said box to be kept securely locked and under seal, and it shall

not be unlocked or the seal broken except by the order of and in the presence

of the board and the clerk, and then only for the purpose of refilling the box

or drawing therefrom the names of jurors for jury service, or in Open court by

order of the judge holding said court for good and sufficient cause, or by order

of the judae holding said court as thereinafter provided.

(2) Said jury book shall be kept in secret by tne clerk under loch

no one shall be allowed to inspect the same except the presiding

jury commissioners or the clerk witn the said commissioners wher

of their official duties.

(d) Im any county of this state, if a majority of the circuit and criminal law

judges and chancelors holdine court in the county finds that the tax records and

permanent recist ration records of the county, or other available anc reliable

sources, are so tabulated and arrar hat names can be selected therefrom

by mechanical or elect~onic means i

distribution of names selected witnout y

human agency to select a particular name, tnen and in tnat event, sucn jucges

and chancellors may authorize the jury commission to obtain names for jury

venires from such source and by such method.

such manner as to assure proportionate

t opportunity for the intervention of any

& r

T.C.A. $39-2-202. First-deoree murder. (a) Every murder perpetrated by means

of poison, lying in wait, or by other kind of willful, deliberate, malicicus,

and premeditated killing, or committed in the perpetration of, or attempt to

perpetrate, any murder in the first degree, arson, rape, robbery, burglary,

larceny, kidnapping, aircraft piracy, or tne unlawful throwing, placing or dis-

charging of a destructive device or bomb, is murder in the first degree.

T.C.A. §39-2-203. (i) No death penalty shall be imposed but upon a unanimous

finding, as heretofore indicated, of the existence of one or more of the statutory

acgravatira circumstances, which shall be limited to the following:

(1) The murder was committed against a person less than twelve (i2) years of age

and the defendant was eighteen (18) years of age, or older;

(5) The murder was especialiy heinous, atrocious, or cruel in that it involved

torture or depravity of mind;

(6) The murder was committed for the purpose of avoiding, interfering with, or

preventing a lawful arrest or prosecution of the cefendant or another.

EXHIBIT C - Page 2

(7) The murder was committed while the defendant was engaged in committing, or

was an accomplice in the commission of, or was attempting to commit, or was

fleeing after committing or attempting to commit, any first degree murder,

arson, rape, robbery, burglary, larceny, kidnapping, aircraft piracy, or un-

lawful throwing, placing or discharging of a destructive device or bomb;

T.C.A. §39-2-205. Review of death sentence. - (a) Whenever the death penalty

is imposed for murder in the first degree and upon the judgment becoming final

in the trial court, the defendant shall have the right of direct appeal from the

trial court to the Tennessee Supreme Court, whicn shall have exclusive appellate

jurisdiction, provided that the sentence of death shall be automatically reviewed

by the Tennessee Supreme Court and said sentence review shall be consolidated

for consideration with the direct appeal, if prayed for. If the defendant has

been convicted of first-degree murder and sentenced to death and appeals that

conviction and sentence, the record as to guilt and sentence shall be expedi-

tiously filed with the Tennessee Supreme Court within the time limit provisions

of Tennessee Rules of Procedure Rules 24 and 25. If the defendant has been

convicted of first-degree murder, then the trial judge shall certify, within

ninety (90) days after the judgment has become final, the record relating to

punishment and the same shal] be transmitted by the clerk of the trial court to

the Tennessee Supreme Court. If the defendant has been convicted of other crimes

at the same trial wherein a death sentence is imposed, the Tennessee Supreme

Court shall have authority to review by direct appeal such other crimes if

appealed by the defendant with the conviction of first-degree murder and sentence

of death.

(b) The appeal of the conviction of first-degree murder and the review of the

sentence of death shall] have priority over all other cases and shall be heard

according to rules promulgated by the Tennessee Supreme Court. The Tennessee

Supreme Court shall first consider any errors assigned and then the court shall

review the sentence of death.

Tennessee Supreme Court shal) determine whether:

(1) The sentence of death was imposed in any arbitrary fashion;

2) The evidence supports the jury’s findings of a statutory aggravating cir-

cumstances or statutory aggravating circumstances;

(3) The evidence supports the jury's finding of the absence of any mitigating

- - J - =]

circumstances sufficiently substantial to outweigh the aggravating circum-

stance or circumstances so found; and

(4) The sentence of death is excessive or disproportionate to the penalty imposed

in similar cases, considering both the nature of the crime and the defendant.

The Tennessee Supreme Court may promulgate rulcs as it deems appropriate to

establish such procedures as are necessary to enabie it to properly review the

death sentence.

(d) In addition to its other authority regarding correction of errors, the

Tennessee Supreme Court, in reviewing the death sentence for murder in the

first degree, is authorized to:

(1) Affirm the sentence of death; or

(2) Modify the punishment to life imprisonment.

(e) In the event that any provision of §§39-2-202 -- 39-2-204, 39-2-206 or this

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section or the application thereof to any individual or circumstances is held

to be invalid or unconstitutional by the Tennessee Supreme Court or a federal

EXHIBIT C - Page 3

court, SO as permanently to preclude a sentence of death as to that individual,

the court having jurisdiction over such individual previously sentenced to

death shall cause such individual to be brought before the proper court which

shall sentence such person to imprisonment for life.

T.C.A. §40-18-111. General verdict of guilty. A general verdict of guilty will

be sustained if there is any one good count in the indictment sustained by proof,

although the other counts may be fatally defective.

Tennessee Rules of Criminal Procedure. Rule 6. The Grand Jury. (a) Formation

of the Grand Jury.

(1) Formation at a Regular Term. -- The judge of the court authorized by law to

charge the grand jury and to receive the report of that body shall, on the first

day of each term of court at which a grand jury is required to be impaneled,

direct the names of al] the qualified jurors in attendance upon the criminal

courts of the county to be written on separate slips of paper and placed in a

box or other suitable receptacle and drawn out by the judge in open court. The

twelve qualified jurors whose names are first drawn shall, witn the foreman,

be the grand jury for the term and shall attend the court unt dismissed by the

judge or until the next term.

Tennessee Constitution, Article 1. Section 10. Double jeopardy prohibited.

that no person shall, for the same offence, be twice put in jeopardy o .

or limb.

EXHIBIT C - Page 4

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.